Walker v. English

• Decision Date: 21 May 1895
• Parties: WALKER v. ENGLISH ET AL.
• Court: Alabama Supreme Court

17 So. 715

106 Ala. 369

WALKER v. ENGLISH ET AL.

Supreme Court of Alabama

May 21, 1895

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

Action by Andrew M. English and others against Stephen T. Walker. From a judgment for plaintiffs, defendant appeals. Affirmed.

This action was brought by the appellees against the appellant to recover the statutory penalty for a failure for three months after written request, to mark a mortgage "Satisfied" on the record. Among the several pleas which were filed by the defendant were the following: (3) "The defendant denies that he refused to mark said mortgage 'Satisfied,' as requested by the plaintiff." (6) "That defendant is a citizen of the state of Tennessee, and at the time notice was given him he was physically unable to come to Huntsville, but did come as soon as he was able to travel, and mark said mortgage 'Satisfied."' The plaintiffs demurred to these two pleas on the ground that they were irrelevant immaterial, and irresponsive, and the matters alleged therein, if true, constitute no defense to the action. These demurrers were sustained, to which ruling of the court the defendant duly excepted. The rulings of the court upon the demurrers to these two pleas present the only questions reviewed on the present appeal; and it is unnecessary to set out any facts of the case other than those stated in the opinion. There was judgment for the plaintiffs assessing their damages at $200. The defendant appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.

William Richardson, for appellant.

Oscar R. Hundley, for appellees.

BRICKELL C.J.

The action, in which the appellees, as mortgagors, were plaintiffs, was brought against the appellant, as mortgagee to recover the penalty of $200 which is imposed by the statute (Code, § 1869) upon a mortgagee who fails, for three months after the request in writing of the mortgagor, to enter satisfaction upon the margin of the record of the mortgage, the mortgage debt having been paid. The defendant filed several pleas, to two of which, the third and sixth demurrers were sustained.

The third plea is a mere denial of the refusal of the defendant to enter the satisfaction. The complaint does not count upon his refusal to enter the satisfaction, but upon his failure. The refusal involves more than the failure. The one is positive, the other may be negligent or...