Farmers' & Merchants' Bank v. Hollind

• Decision Date: 21 June 1917
• Docket Number: 6 Div. 631
• Citation: 76 So. 287,200 Ala. 371
• Parties: FARMERS' & MERCHANTS' BANK v. HOLLIND.
• Court: Alabama Supreme Court

76 So. 287

200 Ala. 371

FARMERS' & MERCHANTS' BANK v. HOLLIND.

6 Div. 631

Supreme Court of Alabama

June 21, 1917

Appeal from Circuit Court, Blount County; W.W. Haralson, Judge.

Action by Jess E. Hollind against the Farmers' & Merchants' Bank for the statutory penalty for failure to mark satisfied the record of a mortgage. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under section 6, p. 449, Acts 1911. Affirmed.

Goodhue & Brindley, of Gadsden, for appellant.

Russell & Johnson, of Oneonta, for appellee.

ANDERSON C.J.

The only error insisted upon in the argument of appellant's counsel was the giving of charge A at the request of the plaintiff. Appellant does not controvert the existence of all elements that would entitle plaintiff to recover, if such a request was made upon the defendant to satisfy the mortgage as is required by the statute. Section 4898 of the Code of 1907. Nor is the sufficiency of the request questioned, if properly made and served upon the defendant. The contention being that the mere delivery to the defendant's cashier Searcy, of the envelope containing the written request, was not sufficient, unless the proof shows that he was at the time notified of the contents, or unless he subsequently read the request, and that, as it was open for the jury to find that Searcy did not know of the request, said charge A invaded the province of the jury.

We think that if the request had been mailed, and the defendant received same in due course, this would be a compliance with the statute by the plaintiff as to making the request, and that if it was delivered by hand to the defendant's authorized agent the statute was met, whether the agent subsequently opened the envelope and read it or not, and that it was not incumbent upon the plaintiff's wife, when delivering the envelope to Searcy, to inform him that it contained a written request for the satisfaction of the mortgage. If the plaintiff's wife delivered the notice or request to Searcy, as hypothesized in said charge A, this fully met the requirement of the statute as to the written request, and the giving of said charge was not error. The case of Dothan Co. v. Ward, 132 Ala. 380, 31 So 748, involves a different state of facts, which justified the defendant's charges in said case, and which do not tend to render charge A bad in the present case.

It is also suggested that the charge is faulty,...