Southwestern Building & Loan Ass'n v. Acker

• Decision Date: 26 November 1903
• Citation: 138 Ala. 523,35 So. 468
• Court: Alabama Supreme Court
• Parties: SOUTHWESTERN BLDG. & LOAN ASS'N v. ACKER.

35 So. 468

138 Ala. 523

SOUTHWESTERN BLDG. & LOAN ASS'N v. ACKER.

Supreme Court of Alabama

November 26, 1903

Appeal from Circuit Court, Shelby County; John Pelham, Judge.

Action by J. H. Acker against the Southwestern Building & Loan Association. From a judgment in favor of plaintiff, defendant appeals. Reversed.

The complaint contained two counts. In the first count the plaintiff sought to recover the statutory penalty for the failure to mark on the margin of the record the satisfaction or payment in full of the deed of trust executed by the plaintiff to the defendant after written request therefor. The second count sought to recover the statutory penalty for failure to enter upon the margin of the record partial payments made upon the deed of trust or mortgage. The evidence showed that the plaintiff and his wife executed to J. W. Johnston, as trustee for the Southwestern Building &amp Loan Association, a mortgage or deed of trust to secure a loan made by the plaintiff from said building and loan association. The evidence for the plaintiff tended to show that he had made several partial payments upon said mortgage indebtedness, and had paid said indebtedness in full. There was introduced in evidence the written request from the plaintiff to the Southwestern Building & Loan Association that it should enter upon the margin of the mortgage or deed of trust executed by the plaintiff to it each of the partial payments made upon his indebtedness to it, and also the satisfaction of said mortgage or deed of trust. The plaintiff introduced the record of the mortgage, which showed that no entry of partial payments or full satisfaction had been entered thereon. The evidence for the defendant tended to show that the plaintiff had made only partial payments on the indebtedness secured by the mortgage or deed of trust, and that there had been no payment or satisfaction in full of said indebtedness. Upon the introduction of all the evidence the defendant, among others, requested the court to give the following written charges, and separately excepted to the court's refusal to give each of them as asked: "(1) If the jury believe the evidence in this case, they must find the issues in favor of the defendant on the first count of the complaint. (2) The court charges the jury that the plaintiff cannot recover in this action for failure to enter partial payments on the margin of record of the instrument mentioned in the...