Daniels v. Densmore

• Decision Date: 06 May 1891
• Citation: 48 N.W. 906,32 Neb. 40
• Parties: JOHN DANIELS v. GEORGE DENSMORE
• Court: Nebraska Supreme Court

48 N.W. 906

32 Neb. 40

JOHN DANIELS v. GEORGE DENSMORE

Supreme Court of Nebraska

May 6, 1891

ERROR to the district court for Lancaster county. Tried below before CHAPMAN, J.

AFFIRMED.

Chas L. Hall, and Chas. O. Whedon, for plaintiff in error, cited Dickenson v. State, 20 Neb. 81; Thomas v Reynolds, 29 Kan. 310; Low v. Fox, 56 Iowa 221.

L. W. Billingsley, and W. H. Woodward, contra.

OPINION

MAXWELL, J.

This action was brought against the assignee of the mortgagee to recover $ 40 actual damages and $ 100 as a penalty, for failing to enter a release of the mortgage when the same was paid and satisfied, and the defendant was thereupon requested to release the same, and the sum allowed by law for such release was duly tendered.

The plaintiff, in his petition, after setting out the making and delivery of the said note and mortgage, alleges: "That after the making of said note and mortgage by the Houstons to the said Franklin J. Cochran, said Franklin J. Cochran assigned the same by his written indorsement on above said mortgage and note to John Daniels; that also after the making of said mortgage and note by the said Houstons to the said Cochran, this plaintiff purchased the said real estate from the said Houstons, subject to said promissory note and mortgage securing the same; that after the purchase of said real estate by plaintiff as aforesaid, plaintiff did, on the 28th day of March, 1885, pay for and fully discharge said promissory note as appears by the written indorsement on the back of the same; that after the payment of said note and mortgage as aforesaid, plaintiff demanded of the said defendant that he have the said mortgage released of record, as he was by law compelled to do; that plaintiff, by his agent, tendered said Daniels sufficient money to pay for the proper expenses of the same, and the said Daniels refused to release the said mortgage, and has refused for more than seven days after being requested so to do."

Daniels, in his answer, denies that he is the mortgagee, his personal representative, or assignee, but admits the execution of the mortgage and admits that he purchased the note secured by said mortgage, but denies that the mortgage was assigned to him or that Densmore asked him to release said mortgage or that he refused to release the same.

On the trial of the cause judgment was rendered in favor of the defendant in error for the sum of $ 40.

Sec. 26, chap. 73, Compiled Statutes, provides that "Any mortgage that has been, or may hereafter be, recorded, may be discharged by an entry on the margin of the record thereof, signed by the mortgagee or his legal personal representative or assignee, acknowledging the satisfaction of the mortgage, in the presence of the register of deeds or his deputy, who shall subscribe the same as a witness, and such entry shall have the same effect as a deed of release duly acknowledged and recorded.

"Sec 27. Any mortgage shall also be discharged upon the record thereof by the register of deeds in whose custody it shall be, whenever there shall be presented to him a certificate executed by the mortgagee, his legal personal representative or assignee, acknowledged or proved and certified as hereinbefore prescribed, to entitle conveyance to be recorded, specifying that such mortgage has been paid, or otherwise satisfied or discharged.

"Sec. 28. Every such certificate, and the proof or the acknowledgment thereof, shall be indexed in the order of mortgages, and recorded at full length; and in the record of discharge the register of deeds shall make a reference to the book and page where the mortgage is recorded.

"Sec. 29. If any mortgagee, or his personal representative or assignee, after full performance of the condition of the mortgage, whether before or after a breach thereof, shall, for the space of seven days after being thereto requested, and after tender of his reasonable charges, refuse or neglect to discharge the same as provided in this chapter, or to execute or acknowledge a certificate of discharge or release thereof, he shall be liable to the mortgagor, his heirs or assigns, in the...