Jones v. Fidelity Loan & Trust Co.
| Decision Date | 25 May 1895 |
| Citation | 63 N.W. 553,7 S.D. 122 |
| Parties | JONES v. FIDELITY LOAN & TRUST CO. |
| Court | South Dakota Supreme Court |
Syllabus by the Court.
1. The term "mortgagor," in the first clause of section 4365, Comp. Laws, is construed to include "his grantee or heirs."
2. Where a complaint in an action for the penalty and damages under the above section follows substantially the language of the statute, it is sufficient.
3. Where a note secured by mortgage upon property in this state is executed in this state, and the note is made payable in another state, but contains the stipulation, "it is agreed that this note is executed and is to be construed under the laws" of this state, it will be treated as not only made in, but payable in, this state in construing it and determining the rights of the parties under the note and mortgage.
4. Where, in a certificate of discharge of a mortgage presented to a mortgagee to be executed, the acknowledgment is left blank, it will be presumed that, when properly signed by the mortgagee, the blank will be properly filled by the officer taking the acknowledgment, whose duty it is to fill up the blank in the same.
5. The mortgagee, upon receiving a mortgage, assumes the statutory and implied liability of discharging the same upon the full payment of the debt secured thereby; and he can only relieve himself from this liability by assigning such mortgage to an assignee who is not only vested with power to discharge such mortgage, but whose assignment is legally recorded, in order that he may properly discharge the same of record, and who thereby becomes legally liable to the mortgagor in case he neglects or refuses to so discharge the same upon full payment. Kellam, J., nonconcurring.
6. The penal laws of a state have no force beyond the boundaries of the state in which they exist.
7. A demand made in another state upon the mortgagee, and his refusal or neglect there to execute a discharge of the same does not subject such mortgagee to the penalty provided by section 4365, Comp. Laws, but will render him liable for any damages the mortgagor, his grantee or heirs, may sustain by reason of such neglect or refusal to so discharge the same.
Appeal from circuit court, Minnehaha county; Frank R. Aikens, Judge.
Action by Joseph W. Jones against the Fidelity Loan & Trust Company. Judgment for plaintiff, and defendant appeals.
S. E Hostetter and Bailey & Voorhees, for appellant.
J. W Jones, for respondent.
This was an action brought by the plaintiff to recover from the defendant $50 actual damages and $200 penalty for its refusal to give certificate of discharge of two mortgages, under the provisions of section 4365, Comp. Laws. A trial was had before a jury, resulting in a verdict and judgment for the plaintiff for $25 damages and $200 penalty, and the defendant appeals.
The facts in this case, briefly stated, are as follows: On April 1, 1887, Leonard F. Davis and wife and the plaintiff, Jones, and wife executed a note and mortgage to the defendant for $1,500, payable in five years from date. At the same time Davis and wife executed a note, secured by a mortgage, to the defendant, on other real property, for $2,500, also payable five years from date. In 1887, soon after the mortgages were given, the said Davis and wife conveyed their interest in the property included in the two mortgages to the plaintiff, Jones. In the deed from Davis and wife of the premises included in the $2,500 mortgage, were a warranty and an assumption clause as follows: "That the same [premises] are free from all incumbrances except one certain mortgage for $2,500, due April 1, 1892, given to the Fidelity Loan and Trust Company, and bearing interest at the rate of 9 per cent. per annum, payable semiannually, which mortgage and interest is to be paid by the said grantee, Joseph W. Jones." On the 1st day of April, 1892, the date of the maturity of said notes and mortgages, the plaintiff forwarded to the defendant, at Sioux City, Iowa, a draft for $4,180.10, being the total amount due upon both of said notes and mortgages, and requested it to return a certificate of discharge of said mortgages. Not receiving any certificate of discharge, the plaintiff, on the 11th day of the same month, forwarded a blank certificate of discharge to the defendant at Sioux City, together with 50 cents fees for acknowledging the same, and demanded the execution of such certificate. The defendant neglected to comply with the demand until about May 30th, when it executed and forwarded to the plaintiff the required certificate. About the same time the plaintiff instituted this action. The appellant seeks a reversal of the judgment upon several grounds, which will be noticed in their order.
1. The first proposition of the learned counsel for appellant is stated by them in their brief as follows: "Respondent, not being the mortgagor in either of the mortgages set forth in the complaint, was not entitled to demand certificates of discharge thereof, and cannot recover the statutory penalty for a refusal or neglect to execute such discharges in accordance with his demand." This proposition assumes as a fact whet is not strictly correct, namely, that the plaintiff was not a mortgagor. The record discloses the fact that the plaintiff was a comortgagor in the $1,500 mortgage. The section of the statute under which this action was brought reads as follows: "When any mortgage has been satisfied, the mortgagee or his assignee must, immediately on demand of the mortgagor, execute and deliver to him a certificate of the discharge thereof, and must, at the expenses of the mortgagor, acknowledge the execution thereof so as to entitle it to be recorded, or he must enter satisfaction, or cause satisfaction of such mortgage to be entered of record; and any mortgagee, or assignee of such mortgage, who refuses to execute and deliver to the mortgagor the certificate of discharge, and to acknowledge the execution thereof, or to enter satisfaction or cause satisfaction to be entered of the mortgage, as provided in this chapter, is liable to the mortgagor or his grantee or heirs for all damages which he or they may sustain by reason of such refusal, and also forfeit to him or them the sum of one hundred dollars." Comp. Laws, § 4365. It will be observed that by the terms of the section the mortgagee or his assignee is required to execute and deliver to the mortgagor a certificate, etc. The plaintiff, as mortgagor in that mortgage, was authorized by the terms of the section to make the demand for the certificate of discharge. The plaintiff had become invested with the title of his comortgagor, and was therefore sole owner of the property, subject to the lien of the defendant's mortgage. The plaintiff, so far as the $1,500 mortgage was involved, was the proper party to make the demand under the statute. But, had the plaintiff not become the owner of his comortgagor's interest, he could, having paid off the mortgage, have demanded the certificate of discharge without joining with him his comortgagor. The relations of the plaintiff to the $2,500 mortgage was not that of a mortgagor, and he does not, therefore, come within the strict letter of the first clause of the section. We cannot agree with the counsel for respondent that the section under consideration is a remedial one, but, in our opinion, it is in its nature penal, in so far as it provides for a fixed penalty. 2 Jones, Mortg. § 990; Suth. St. Const. § 358; Kirby v. Telegraph Co. (S. D.) 57 N.W. 202; Stone v. Lannon, 6 Wis. 497; Thomas v. Reynolds, 29 Kan. 304. But, though penal in its nature, it must nevertheless receive a reasonable construction, and such as will render harmonious its various provisions. It will be noticed that the last clause of the section provides that upon a request or refusal to deliver to the mortgagor the certificate of discharge, "the mortgagee or his assignee is liable to the mortgagor or his grantee or heir for all damages which he or they may sustain, *** and also forfeit to him or them the sum of one hundred dollars." One of the cardinal rules of construction of statutes requires the court to ascertain, if possible, from the language used, the intention of the lawmaking power. "The intent is the vital point, the essence of the law." Suth. St. Const. 234. And for the purpose of ascertaining that intention the court may take into consideration all the provisions of the act or section. "When the intention can be collected from the statute, words may be modified, altered, or supplied, so as to obviate any repugnancy or inconsistency with such intent." Suth. St. Const. 218. Thus in Needham v. Railroad Co., 38 Vt. 300, the court supplied the word "by" in a section so as to make it read "by or against" executors, administrators, etc., the court being of the opinion that such was the intention of the legislature. And in Silver v. Ladd, 7 Wall. 219, the supreme court of the United States held that the term "single man" included in its meaning an "unmarried woman," as such was the evident intention of the lawmaking power, and the court, in effect, inserted those words in the statute. Lawrence Co. v. Meade Co. (S. D.) 62 N.W. 131.
Reading the two clauses of the section under consideration together it seems clear to us that it was intended that the demand might be made by the mortgagor or his grantee or heir; or, in other words, by the party who is in fact the owner of the land at the time the demand is made. To hold that the mortgagor alone can make the demand, and yet the damages and penalty, after the demand is made, can be recovered by the grantee or heir, would require us to give an absurd construction to the section. In case of the death of the mortgagor, or his absence from the...
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