Clark v. Wright

• Decision Date: 30 June 1899
• Citation: 123 Ala. 594,26 So. 501
• Parties: CLARK v. WRIGHT ET AL.
• Court: Alabama Supreme Court

26 So. 501

123 Ala. 594

CLARK v. WRIGHT ET AL.

Supreme Court of Alabama

June 30, 1899

Appeal from circuit court, Crenshaw county; J. W. Foster, Judge.

Action by J. W. Clark against Wright and others. There was a judgment for defendants, and plaintiff appeals. Affirmed.

This was an action to recover the statutory penalty of $200 for the failure of the defendants to enter upon the margin of the record the payment of a mortgage made by the plaintiff to the defendants. The cause was tried on issue joined on the plea of the general issue. The plaintiff introduced in evidence a mortgage which was given by him to the defendants, and proved that said mortgage had been paid. After proving that such notice had been served upon the defendants, the plaintiff then introduced in evidence the following written notice which was dated February 3, 1898: "Wright, Henderson &amp Rainer-Dear Sirs: I want you to take my note off the record and oblige, J. W. Clark." The defendant objected to the introduction of this notice in evidence, and moved the court to exclude it from the jury, on the ground that it was insufficient, and not such a notice as would inform the defendants of the paper referred to, and that it was too indefinite, and not such a notice as is required by law. The court granted this motion, and excluded said notice from the jury. The court, at the request of the defendants, gave the general affirmative charge in their behalf, and to the giving of this charge the plaintiff duly excepted. There were verdict and judgment for the defendants. The plaintiff appeals, and assigns as error the ruling of the court upon the evidence, and the giving of the general affirmative charge for the defendants.

Bricken & Bricken, for appellant.

Rushton & Powell, for appellees.

TYSON J.

The statute requires a mortgagee whose mortgage has been fully paid or satisfied, when the mortgage is of record, on request in writing of the mortgagor, to enter the fact of payment or satisfaction on the margin of the record of the mortgage. If he fails for two months after such request to make such entry, he forfeits to the mortgagor $200, unless there is pending or there is instituted a suit within that time in which the fact of payment or satisfaction is or may be contested. Code, § 1066. It has been repeatedly decided that no particular form of words is necessary to constitute a sufficient request. The statute requires that the...