British and American Mortgage Company v. Burke

• Decision Date: 26 May 1902
• Citation: 80 Miss. 643,32 So. 51
• Court: Mississippi Supreme Court
• Parties: BRITISH AND AMERICAN MORTGAGE COMPANY v. IRENE S. BURKE ET AL

32 So. 51

80 Miss. 643

BRITISH AND AMERICAN MORTGAGE COMPANY v. IRENE S. BURKE ET AL

Supreme Court of Mississippi

May 26, 1902

March 1902

FROM the circuit court of Lowndes county HON. EUGENE O. SYKES Judge.

Mrs Burke, and another, appellees, were plaintiffs in the court below; the British and American Mortgage Company, appellant was defendant there. The court below gave judgment for plaintiffs and defendant appealed to the supreme court. The facts are stated in the opinion of the court.

Reversed and remanded.

William Baldwin, for appellant.

The appellees' right of recovery is based upon three alleged requests, to wit: O'Neill's letter, Judge Cayce's letter, and M. M. Burke's letter. None of them are sufficient.

We are dealing with a statute which is highly penal, its provisions harsh, and before its cruel penalties can be visited upon any one it must be violated. The strictest construction must be placed upon it. If the pound of flesh is demanded, no blood must be spilled.

The demand for satisfaction upon the record should have been made upon the mortgage company, who alone had the power to mark it satisfied upon the record. The O'Neill request was of Sullivan, whose only connection with the mortgage was that at some past time he had, as attorney for appellant, adjusted a dispute balance with the Burkes. This is in no way sufficient.

His request was to have the trust deed paid off by this draft conceled. What trust deed was it that was paid off by this draft? Neither O'Neill nor any other witness tells us what trust deed was paid off by this draft. Nothing from him or any other witness on the subject.

There were at the time when this draft was sent, three deeds of trust executed by the Burkes to the mortgage company on the records of Lowndes county, all unpaid and unsatisfied. Which one of these deeds of trust did this draft pay off? Nothing in this record shows.

Section 2451 visits no penalty upon one, a mortgagee, who fails to cancel, but its penalty is upon a mortgagee who fails, when requested, to enter satisfaction upon the margin of the record of the trust deed or mortgage. This exact question was passed upon by the supreme court of Alabama in Chattanooga B. & L. Assn. v. Echols, 27 So. Rep., 975.

Judge Cayce's letter called for satisfaction upon the record of "a deed of trust upon lands in this (Lowndes county), it being a part of the land included in the deed from the British and American Mortgage Company to M. M. Burke and I. S. Burke, of date November, 1898."

The deed of trust upon which this suit is based was upon land that was not "included in the deed from the British and American Mortgage Company to M. M. Burke and I. S. Burke, of date November, 1898, " and hence could not have been the land or the deed of trust referred to in Judge Cayce's letter.

This letter of Burke was written to A. L. Richardson, not as agent; nothing in the letter to indicate that it was written to Richardson as agent of the mortgage company at all.

It was not sent, so far as we can gather, to the mortgage company at all, but, so far as appears, is but a private letter from M. M. Burke to A. L. Richardson.

It demands the "cancellation" of a mortgage "on two hundred acres of land." Does not state what mortgage, by whom executed, to whom executed, or what it was given to secure, nor where recorded. What is stated is misleading--that is, a mortgage "on two hundred acres of land."

A. L. Richardson could not have found such a mortgage had he made the most diligent search therefor, because there was no such. The demand was made on Richardson to do what? To cancel the mortgage. That had already been done, the notes and mortgage stamped with the company's cancellation stamp had already been delivered to him, and this is not denied.

The only demand made by Burke was to do what had already been done. The demand required by the statute "to enter satisfaction upon the margin of the record" was not even suggested by Burke.

Newnan Cayce, for appellees.

The request of the appellees, through their attorney, Newnan Cayce, to the appellants to have the record of said deed of trust marked satisfied did not reasonably give appellants any ground to misapprehend and mistake the meaning of the letter, nor the deed of trust referred to therein as being desired to have canceled.

The letter uses this language: "In July, 1896, M. M. & I. S. Burke paid to the British and American Mortgage Company a note, the payment of which was secured by a deed of trust, etc. The record of said deed of trust has never been marked satisfied, but appears uncanceled upon the record. M. M. & I. S. Burke request that the mortgagees aforesaid take proper steps and have the record of said deed of trust marked satisfied by proper authority."

The deed of trust, referred to in this letter, cannot be mistaken in the exercise of any reasonable business attention and thought.

Again, in April, 1899, appellees wrote appellants, asking the cancellation of the deed of trust. This letter says: "The mortgage executed about 1892 on 200 acres of land, and paid in full to W. V. Sullivan during the year 1896, has never been canceled, and we now demand of you to cancel same instanter."

What deed of trust is here asked to be canceled? and who could with any reason, claim to...