Potts v. Ellis

Decision Date15 June 1939
Docket Number7 Div. 550.
PartiesPOTTS v. ELLIS ET AL.
CourtAlabama Supreme Court

Appeal from Circuit Court, Cherokee County; A. E. Hawkins, Judge.

Action by S. T. Potts against Watt A. Ellis and Earl V. Ellis partners doing business under the firm name of Ellis Brothers, to recover statutory penalties for failure to enter satisfaction of mortgages on record. From a judgment of nonsuit, plaintiff appeals.

Reversed and remanded.

Savage & Savage, of Centre, for appellant.

Reed &amp Reed, of Centre, for appellees.

BROWN Justice.

The judgment entry as amended nunc pro tunc is sufficient to support the appeal. Gentry v. Swann Chemical Co., 234 Ala. 313, 174 So. 530.

The evidence is without dispute that the written notice, in these words:

"Centre, Alabama.
"December th 24, 1936
"Mr. E. V. Ellis and Mr. W. A. Ellis and Bros. I am asking you Both to clear the records of Cherokee Co. of all noats you hold against me up to this date 24th of Dec. 1936. Yours respectfully," was delivered by the plaintiff Potts in person to one of the members of the firm in the office of the partnership store. The plaintiff testified:
"I gave it to W. A. Ellis. I did not give it to E. V. Ellis. E. V. Ellis was in the back of the store, I did not give him the notice nor any copy of it."

The evidence further shows that the notice was given immediately after the plaintiff had made full settlement with the defendants and they had delivered to him the mortgages evidencing the indebtedness which he had immediately before paid in full, and that Ellis remarked to plaintiff: "Uncle Sam, you needn't to have gone to all that trouble, I will attend to that right away."

On the defendants' objection the court refused to permit the notice in evidence, and this ruling superinduced the non-suit.

We are of opinion that the notice considered in connection with the circumstances under which it was given--the res gestæ of the transaction--was sufficient to require the defendants to perform the statutory duty of entering satisfaction on the record of mortgages recorded in Cherokee County, to secure the indebtedness which the plaintiff then and there paid in full. Code, 1923, §§ 9023, 9024; Baty v. Foster, 222 Ala. 442, 132 So. 895; Partridge v. Wilson, 141 Ala. 164, 37 So. 441; Henderson et al. v. Wilson, 139 Ala. 327, 36 So. 516; Dothan Guano Co. v. Ward, 132 Ala. 380, 31 So. 748; Loeb v. Huddleston, 105 Ala. 257, 16 So. 714.

While these statutes, Code 1923, §§ 9020-9024, are penal and must be strictly construed in respect to the request or notice, required as a predicate for imposing the penalty, courts must not lose sight of the fact that they were enacted for the benefit and protection of mortgagors and other debtors whose property has been encumbered by such mortgages and liens as a security for debts that have been paid in part or in full, and to prevent abuses by mortgagees and such other lien holders by subjecting such debtors to economic bondage by holding on the public records evidences of such encumbrances for mercenary profit or advantage.

Section 9022 of the Code, as amended by Act No. 60, Extra Session 1932, p. 82, approved October 6, 1932, dealing with the character and method of making the request or giving notice, is limited by its terms to the "preceding section" new to the Code of 1923, § 9021, and is not applicable to cases arising under §§ 9020, 9023, and 9024, which have come down through the several Codes since 1886.

The case dealt with by the court in Universal Credit Co. v. Clay County Trading Co., Inc., 235 Ala. 577, 180 So. 259, arose under said § 9021 of the Code.

In Baty v. Foster, supra, the mortgage was made to J. T. Foster and the notice was directed to John Foster. The court held in effect, that this ambiguity in the notice was removed and the notice made certain by extrinsic evidence showing that J. T. and John Foster were one and the same. It follows, as a matter of logic, that if the notice may be made certain as to the person, it also may be made certain as to the instrument or thing.

In the instant case the res gestæ of giving the notice, makes certain that it referred to the instruments securing the debt which plaintiff had just immediately paid and which were passed to him over the counter by one of the defendants, followed immediately by plaintiff handing the notice to said defendant.

It is well settled that: "A notice to the mortgagee by the mortgagor directing the satisfaction on the record of all recorded mortgages given by the mortgagor to the mortgagee, which have been paid, is sufficiently definite." International Harvester Co. v. Simpson, 222 Ala. 493, 133 So. 45; citing Dothan Guano Co. v. Ward, supra; Henderson v. Wilson, supra.

In International Harvester Co. v. Simpson, supra, it was observed: "In the instant case the notice referred to one mortgage only, but did not describe or clearly refer to any certain mortgage. There were two, either of which could have been intended. But giving the notice such strict construction as the law...

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4 cases
  • American Standard Credit, Inc. v. National Cement Co.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 20 April 1981
    ...ISCO had actual knowledge at the time of the second sale, that knowledge is imputed to the joint venture. See e. g., Potts v. Ellis, 238 Ala. 155, 157, 190 So.73, 76 (1939)(knowledge acquired by one partner is imputed to the "The only way to communicate actual notice to a corporation is thr......
  • Anderson v. Howard Hall Co.
    • United States
    • Alabama Supreme Court
    • 24 June 1965
    ...judgment in the instant case, though it is not so recited in terms. Gentry v. Swann Chemical Co., 234 Ala. 313, 174 So. 530; Potts v. Ellis, 238 Ala. 155, 190 So. 73; Carter v. City of Gadsden, 264 Ala. 544, 88 So.2d On April 5, 1958, Mrs. Leona Anderson was injured and her automobile damag......
  • Clark v. Henderson
    • United States
    • Alabama Supreme Court
    • 18 March 1943
    ...admitting the original record. Drennen Motor Co. v. Evans, 192 Ala. 150, 158, 68 So. 303; See also 43 C.J. p. 820, § 986. In Potts v. Ellis, 238 Ala. 155, 190 So. 73, many are collected as to the sufficiency of notice required by statute to require endorsement on the record of satisfaction ......
  • Jackson v. State, 6 Div. 448.
    • United States
    • Alabama Supreme Court
    • 22 June 1939

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