Wilkerson v. Sorsby

• Decision Date: 17 January 1918
• Docket Number: 6 Div. 670
• Parties: WILKERSON v. SORSBY et al.
• Court: Alabama Supreme Court

77 So. 708

201 Ala. 182

WILKERSON v. SORSBY et al.

6 Div. 670

Supreme Court of Alabama

January 17, 1918

Rehearing Denied Feb. 7, 1918

Appeal from Circuit Court, Jefferson County; John H. Miller, Judge.

Suit by Hattie C. Wilkerson against J.K. Sorsby and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Hattie C. Wilkerson, formerly Hattie E. Cash, and her husband, John W. Cash, executed two mortgages in the year 1905 on certain real estate situated in Jefferson county to the King Lumber Company. The husband, John W. Cash, died in January, 1906. Subsequently the widow, appellant here, and plaintiff in the court below, through appropriate proceedings in the probate court had the property embraced in said mortgages set apart to her as exempt under the statute as the homestead of the decedent at the time of his death. The evidence shows that by such proceedings the title thereto vested absolutely in the widow; it being all the property owned by the deceased. On March 1, 1916, notice in writing was served upon the defendants to satisfy the said mortgages; the same being given by the attorneys of said plaintiff, formerly Hattie E Cash. The mortgages were not satisfied as of record within the time required by the statute, and the said Hattie C Wilkerson, formerly Hattie E. Cash, brings this suit to recover the penalty of said mortgagee, or his assignees. The affirmative charge was given for the defendants, and plaintiff prosecutes this appeal.

Goodwyn & Ross, of Bessemer, for appellant.

W.M Woodall and Edward Jenkins, both of Birmingham, for appellees.

GARDNER J.

Suit by the appellant for recovery of the statutory penalty provided by section 4898 of the Code of 1907 for the failure to mark "satisfied" the record of two certain mortgages executed by the plaintiff, who was formerly Hattie E. Cash and her husband, John W. Cash, in the year 1905. The husband died in the year 1906. Requests for the satisfaction of the mortgages were given by said plaintiff in March, 1916. It was held in the court below that, as the undisputed evidence shows, there were two mortgagors, and the request for the satisfaction of the record was made by only one; therefore the plaintiff had no cause of action. This is the sole question presented for determination here.

The statute creating the remedy here sought is highly penal, is to be strictly construed, and cannot be extended by implication. It has heretofore been held by this court that where the mortgage is executed by two mortgagors, the request to enter satisfaction must be made by both of the mortgagors, and not by one of them alone; that the right to ask for the penalty is a joint one given to both of the mortgagors, who are required to join in the action for recovery.

In Jowers v. Brown, 137 Ala. 581, 34 So. 827, it was held that although the suit for recovery of the penalty was brought by J.M. Brown, who signed his own name and also that of his wife to the request, and suit was brought in the name of both, yet there could be no recovery for the reason that the wife had not signed the request; and the evidence failed to show that the husband had signed the name of the wife as her agent or with her knowledge or consent to the request. The affirmative charge was held as being properly given for the defendant. In this holding the court followed the earlier case of Jarratt v. McCabe, 75 Ala. 325. See, also McClendon v. Henderson Land & Dev. Co., 9 Ala.App. 480, 63 So. 811. In S.W. Bldg. & Loan Ass'n v. Rowe, 125 Ala. 491, 28 So. 484, it was held that the courts will not extend the penalty provided therein to classes of persons "not embraced in the penal clause, even where there is manifest omission or oversight on the part of the Legislature. We cannot know that the Legislature intended more than they had expressed." There it was held that...