Bright v. Wynn

• Decision Date: 11 October 1923
• Docket Number: 6 Div. 971.
• Citation: 210 Ala. 194,97 So. 689
• Parties: BRIGHT ET AL. v. WYNN ET AL.
• Court: Alabama Supreme Court

97 So. 689

210 Ala. 194

BRIGHT ET AL. v. WYNN ET AL.

6 Div. 971.

Supreme Court of Alabama

October 11, 1923

Appeal from Circuit Court, Blount County; O. A. Steele, Judge.

Action by Jonas Wynn and G. A. Wynn against J. M. Bright and D. O McKoy. From a judgment for plaintiffs, defendants appeal. Transferred from Court of Appeals under section 6, Acts 1911 p. 449. Reversed and remanded.

Ward Nash & Fendley, of Oneonta, for appellants.

Russell & Johnson, of Oneonta, for appellees.

MILLER J.

This is a suit by Jonas Wynn and G. A. Wynn against J. M. Bright and D. O. McKoy to recover the statutory penalty under section 4898 of the Code of 1907 for failing to mark satisfied on the record of a real estate mortgage. The jury returned a verdict in favor of the plaintiffs, and from a judgment thereon by the court this appeal is prosecuted by the defendants, and each separately and severally assign errors.

There is only one count in the complaint. It avers plaintiffs executed a mortgage on real estate to one A. E. Fields on _____ day of February, 1913, which was duly recorded in the probate office of Blount county, Ala.; after its recordation it was transferred to the defendants, and, after being transferred to the defendants, the mortgage debt was paid in full. After paying the debt in full, plaintiffs gave the defendants written request to mark the fact of satisfaction on the margin of the record of the mortgage, and the defendants failed for two months after said request was made on them to make the entry of the fact of satisfaction on the margin of the record of the mortgage. This count of the complaint is not subject to the general grounds of demurrer assigned to it. The court did not err in overruling the demurrer; the grounds of demurrer should state distinctly the defects in the count. These assignments of demurrer were too general; they were not specific as to the defects, and the court will not be put in error for overruling general assignments of demurrer. Section 5340, Code 1907; Ryall v. Allen, 143 Ala. 223, headnote 4, 38 So. 851; Milligan v. Pollard, 112 Ala. 465, 20 So. 620.

The judgment entry recites:

"The parties hereto agree to plead in short by consent the general issue, with leave to give in evidence any matter, which, if well pleaded, would be admissible in defense of the action to have effect as if so pleaded; and with leave to the plaintiff to give in evidence any matter, which, if well pleaded, would be admissible in reply to such defensive matter to have effect as if so pleaded."

The plaintiffs introduced in evidence a mortgage executed by them to A. E. Fields on real estate to secure the sum of $2,000, evidenced by 15 promissory notes, dated February 1, 1913, which mortgage was duly recorded in the probate office of Blount county, Ala. The mortgage had the following indorsements on the back:

"I hereby transfer this mortgage with notes to James Bright for value received. November 28, 1919. Mrs. A. M. Fields. *** I hereby transfer the within mortgage to D. O. McKoy. 1/7th-21. J. M. Bright. Witness: A. A. Fendley."

The defendants each objected to the introduction of the mortgage and the transfer on it, because no authority is shown that Mrs. Fields had a right to transfer the mortgage. The court overruled the objections, and allowed in evidence the mortgage and the above-quoted transfer indorsements on it.

There was evidence tending to show that J. M. Bright transferred these notes and mortgage to D. O. McKoy as collateral to secure a debt for borrowed money.

Each defendant requested the court to give the general affirmative charge in writing, with hypothesis, in his favor, and the court refused to give each of them to the jury.

Section 4898 is highly penal, and must be strictly construed. Grooms v. Hannon, 59 Ala. 510; Butler C. Oil Co. v. Brooks, 204 Ala. 195, headnotes 3, 4, 85 So. 778; Jarratt v. McCabe, 75 Ala. 326; Wilkerson v. Sorsby, 201 Ala. 182, 77 So. 708. The penalty may be recovered from the mortgagee or the transferee or assignee of the mortgagee under the circumstances mentioned in the statute. Section 4898, Code 1907.

In the instant case A. E. Fields is the mortgagee, and the plaintiffs are the mortgagors. Are the defendants, or either of them, transferees or assignees of A. E. Fields, the mortgagee? They must be before they can be made liable for this penalty under the conditions shown by this statute. "To recover a statutory penalty, the party complaining must bring himself within the letter of the statute." Grooms v. Hannon, 59 Ala. 510; Butler Cotton Oil Co. v. Brooks, 204 Ala. 195, headnote 34, 85 So. 778; Wilkerson v. Sorsby, 201 Ala. 182, 77 So. 708.

The plaintiffs, the mortgagors, by this mortgage convey real estate to the mortgagee, A. E. Fields, as security for this $2,000 debt. The undisputed evidence shows that, after this mortgage was executed, delivered, and recorded A. E. Fields died, and left surviving him a widow and "some children." The record is silent as to the date of his death, the number of surviving children and their ages. A. E. Fields, on November 27, 1914, transferred this mortgage and the debt it secured to the Oneonta Trust & Bank Company as collateral to secure a debt due the bank. On February 3, 1916, this bank retransferred their mortgage and notes to A. E. Fields, stating the debt for which it was held as collateral had been paid to it. It is clear from the evidence that A. E. Fields died before the 28th day of November, 1919, when his widow transferred the mortgage to James Bright, one of the defendants in this case. There is no evidence indicating how the widow obtained this mortgage, or with what authority she transferred it to the defendant J. M. Bright. From the evidence it belonged to A. E. Fields, the mortgagee, at his death.

The legal title to the lands in a mortgage on the death of the mortgagee, intestate, at common law, descended to his heirs. The heirs, his children, hold it in trust for the administrator of his estate when...