Martin v. Walker

• Decision Date: 06 April 1916
• Docket Number: 7 Div. 792
• Citation: 71 So. 667,196 Ala. 469
• Parties: MARTIN v. WALKER et al.
• Court: Alabama Supreme Court

71 So. 667

196 Ala. 469

MARTIN v. WALKER et al.

7 Div. 792

Supreme Court of Alabama

April 6, 1916

Appeal from Clay County Court; E.J. Garrison, Judge.

Action by H.E. Martin against W.R. Walker and George Gosdin, as partners, for the penalty for the failure to satisfy the record of a mortgage. Judgment for defendants, and plaintiff appeals. Transferred from the Court of Appeals under section 6, Acts of 1911, p. 450. Affirmed.

The notice is as follows:

"Goodwater, Ala., 2-18-15. Dear Sirs: I see your mortgage on me hasn't been taken off record yet, please give the matter prompt attention and take it off at once. The mortgage was due Nov. 1, 1914, recorded in Mortgage Record 42, page 292, at Ashland, Ala. Yours very truly, H.E Martin."

Upon this paper was also indorsed the following:

"Judge Ingram: Please mark H.E. Martin's notice satisfied in favor of Walker & Gosdin, all of them. Walker &amp Gosdin."

It appears from the evidence that the original notice was delivered to Gosdin by one Percy Peppers and Estes Peppers plaintiff's agents, and that, when the indorsement was made upon the notice, it and the notice were redelivered to the said Peppers with the request to deliver to plaintiff. The other facts sufficiently appear.

C.W Allen and Merrill & Cornelius, all of Ashland, for appellant.

Riddle, Burt & Riddle, of Talladega, for appellee.

SAYRE J.

It may be doubted that the notice in this case was the full equivalent of the request in writing which the statute, section 4898 of the Code, makes a condition precedent to the mortgagee's liability for failing to enter the fact of payment or satisfaction on the margin of the record. Clark v. Wright, 123 Ala. 594, 26 So. 501. But defendants knew what it meant, and accepted it as the request prescribed by law. We shall therefore, for the purposes of this case, consider it as sufficient. So considering the request, we think there was no reversible error.

The ethical correctness of the decision below is plain, and our judgment is that it should be sustained on legal considerations as well. The facts to which plaintiff objected were admissible in proof of the allegations of pleas 6 and 7 alike. Plea 7 repeats the allegations of plea 6, and adds, to state the legal effect of the addition, that plaintiff, well knowing that defendants relied on him to deliver their request and power of attorney to the probate judge, and fraudulently contriving to lull defendants into a sense of security, to the end that the mortgage might not be marked satisfied, as plaintiff pretended to desire, but that it might not be so marked in order that he might have the penalty for failure, withheld the said request and power of attorney from the probate judge. This was a good plea, as for any specific objection taken to it by the demurrer, and the judge below, trying the case without a jury, could not have reasonably found otherwise than that it was sustained by the proof. Such being the case, the survival in the record of plea 6, though it should have been stricken on demurrer, will not be allowed to work a reversal of the judgment.

The only point of apparent difficulty is raised by plaintiff's proposition that he owed defendants no duty to take their request and power of attorney to the probate judge, and hence they had no right to rely upon him to do so. In the peculiar circumstances of this case our opinion is that defendants had both a moral and legal right to rely upon plaintiff as alleged.

Without dispute the evidence showed that defendants, upon receiving from plaintiff's agent the request in writing that the mortgage be marked satisfied upon the record, indorsed upon it a written request and authority to the probate judge to mark the note satisfied--meaning upon fair construction the note and mortgage in the body of which it was incorporated; that they delivered this request and power of attorney to plaintiff's agent, who thereupon became their agent, with the request, in effect, that he or plaintiff would take it to the probate judge upon some occasion when they would be going to the county seat, where the mortgage was recorded; that this agent did not indicate that he would take the paper to the probate judge, but he did undertake to carry it to plaintiff; that he delivered the paper to plaintiff and told him of defendants' request; that plaintiff said nothing; did nothing. The mortgage in question, a mortgage securing a loan of $265 on household furniture, farming stock and implements, and crops to be grown by the mortgagor, was executed at Goodwater, in Coosa county, and defendants' request and power of attorney was dated from Goodwater. But the mortgage was recorded in Clay county, and this suit was brought in Clay. The fair inference is that plaintiff lived in Clay, and that defendants did business at Goodwater. These facts, to which we have last referred, are significant to this extent; they go to prove, there being nothing to the contrary, that defendants were not making an extraordinary or unreasonable draft on the good feeling upon which, as the whole record of the facts goes to show, they relied in assuming that plaintiff in good faith desired that the cloud upon his title should be removed, within two months at most, and in sending their request to him. The true motive that characterized plaintiff's conduct in the premises is further shown by the fact that within the time in which the record might have been satisfied according to the statute he went to the county seat, and on the sixtieth day, which was the first day after two months had expired, he went into the probate office with the power of attorney in his pocket, but withheld it from the probate judge. The mortgage was satisfied of record, but it does not appear just when this was done; we know only that it was more than 60 days after notice. These facts authorized and required a judgment for defendants under their seventh plea.

The mere inadvertence or indifference of the mortgagee after payment and notice will not excuse his failure to enter payment or satisfaction of record. Dittman Boot & Shoe Co. v. Mixon, 120 Ala....