Avant v. Avant
| Decision Date | 27 April 1922 |
| Docket Number | 5 Div. 817. |
| Citation | 92 So. 651,207 Ala. 409 |
| Parties | AVANT v. AVANT ET UX. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Elmore County; B. K. McMorris, Judge.
Action by J. G. Avant and wife against W. L. Avant for the statutory penalty for failure to satisfy a mortgage record. Judgment for the plaintiffs, and the defendant appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 449. Reversed and remanded.
Holley & Milner, of Wetumpka, for appellant.
George F. Smoot, of Wetumpka, for appellees.
Appellees recovered a judgment against appellant for the statutory penalty provided by section 4898 of the Code of 1907 for the failure to mark "satisfied" the record of a certain mortgage executed by them to the appellant, bearing date May 2, 1916, and which was duly recorded. It is well established by our decisions that the foregoing statute, being highly penal in its nature, is to be strictly construed, and to authorize a recovery thereunder the complaining party must bring himself within its letter. Wilkerson v Sorsby, 201 Ala. 182, 77 So. 708.
The notice to the mortgagee demanding satisfaction of the record is of course of vital importance, and the sufficiency of its contents as complying with the terms of the statute is frequently presented for determination here. Chattanooga B. & L. Ass'n v. Echols, 125 Ala. 548, 27 So. 975; Henderson v. Wilson, 139 Ala. 327, 36 So. 516; Martin v. Walker, 196 Ala. 469, 76 So. 667.
Plaintiffs insisted that the notice in the instant case was given to the mortgagee by letter mailed to his address, and upon the trial of the cause their counsel moved the court to require defendant to produce this letter. Defendant's attorney then informed the court that neither the defendant nor his attorney had been served with any notice that a motion would be made to require the defendant to produce such letter. Plaintiffs then offered in evidence a purported notice, a copy of which had been served on defendant's attorney, which gave information to the defendant that motion would be made to require him to produce a copy of said letter. Defendant objected to this notice upon the ground that it merely gave notice of a motion to require him to produce a copy, and not the letter itself. The court held the notice sufficient, and allowed the same to be introduced. It was stated that neither counsel nor defendant had the original letter referred to at the place of the trial of this case. J C. Avant, one of the plaintiffs, was then permitted over defendant's objection, to testify as to the contents of the letter which he had mailed to defendant, and to this action of the court exception was duly reserved. As was said in Home Protection of North Ala. v. Whidden, 103 Ala. 203, 15 So. 567.
"Copies of letters cannot be classed as original evidence, and are not admissible except upon proof of notice to produce the original, or after properly accounting for the absence of the original."
In the instant case there was no notice of demand for the original letter, but only for ' a copy thereof. The notice itself therefore gave information that it called for secondary evidence, which would not be admissible except upon proof of notice to produce the original or accounting for its absence. Following the logic of the holding in the Whidden Case supra, it must be held that the notice was insufficient, and that the court erred in admitting secondary evidence of the contents of the letter.
Upon cross-examination J. G. Avant stated that his recollection was that the notice embraced in the letter mailed to defendant to satisfy the record of the mortgage was in the following language:
The mortgage in question was executed by J. G. Avant and Julia A Avant, embracing lands in both Elmore and Coosa...
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