Livingston v. Cudd

• Decision Date: 21 April 1899
• Parties: LIVINGSTON v. CUDD.
• Court: Alabama Supreme Court

25 So. 805

121 Ala. 316

LIVINGSTON v. CUDD.

Supreme Court of Alabama

April 21, 1899

Appeal from circuit court, Morgan county; H. C. Speake, Judge.

Action by J. H. Livingston against J. J. Cudd. There was a judgment for defendant, and plaintiff appeals. Reversed.

A demurrer was sustained to the complaint as originally filed and thereupon the plaintiff amended his complaint so as to read as follows: "(1) Plaintiff claims of defendant the sum of two hundred dollars, for the failure to enter or have entered satisfaction of a mortgage upon the margin of the record thereof, for three months from the time he was requested in writing so to do, by the plaintiff; he, the defendant, having received at the time, he was requested in writing to enter said satisfaction, payment and full satisfaction of the amount secured by said mortgage; which said mortgage was executed by plaintiff in the year 1894 namely in January of said year, and was payable to defendant. Said mortgage was recorded in the office of the judge of probate of Morgan county, Alabama, on the 12th day of February, 1894. Said notice to defendant to mark said mortgage satisfied as above averred was made in writing and received by defendant before the commencement of this suit." To this complaint the defendant demurred upon the ground that it fails to aver that at the time notice was given to satisfy the mortgage the plaintiff was the owner of any property covered by said mortgage. The court sustained this demurrer, and the plaintiff declining to plead further judgment was rendered for the defendant. The plaintiff appeals, and assigns as error the ruling of the court in sustaining the demurrer to the amended complaint.

O Kyle, for appellant.

E. W. Godbey, for appellee.

HARALSON J.

Before the amendment of the statute in respect to satisfying mortgages on the record, to its present form, the original section of the Code was, "Any mortgagee who has received satisfaction of the amount secured by such mortgage, must, if the same has been recorded, at the request of the mortgagor enter satisfaction," etc. Code 1886, § 2222. As amended it provides that, "If a mortgage which is of record has been fully paid or satisfied, the mortgagee or the transferee or assignee of the mortgage, who has received payment or satisfaction, must, on the request in writing of the mortgagor, or of a judgment or other creditor of the mortgagor having a lien or claim on the property mortgaged, or of a purchaser from the mortgagor, enter the fact of payment or satisfaction on the margin of the record of the mortgage," etc. Code 1896, § 1066. In default of a compliance within two months thereafter with such request, he forfeits to the...