Opinion
6 Div. 910.
February 27, 1936. Rehearing Denied April 9, 1936.
Appeal from Circuit Court, Jefferson County; John Denson, Judge.
London, Yancey, Smith Windham and Al. G. Rives, all of Birmingham, for appellant.
The statute, being highly penal, is to be strictly construed, cannot be extended by implication, and, to recover the penalty therein provided, the party complaining must bring himself within the letter of the statute. Code 1923, § 9020 et seq.; Wilkerson v. Sorsby, 201 Ala. 182, 77 So. 708; Grooms v. Hannon, 59 Ala. 510; International Harvester Co. v. Simpson, 222 Ala. 493, 133 So. 4; Scales v. Rosenbush Furniture Co., 212 Ala. 19, 101 So. 743; Martin v. Walker, 196 Ala. 469, 71 So. 667. A letter purporting to be a request to enter of record satisfaction of a paid-up mortgage, which is ambiguous and uncertain and which the mortgagee is unable to understand, is not such a request and notice as will entitle plaintiff to recover the penalty for failure to make entry of satisfaction. International Harvester Co. v. Simpson, supra; Chattanooga Nat. B. L. Ass'n v. Echols, 125 Ala. 548, 27 So. 975; Jordan v. Mann, 57 Ala. 595; Martin v. Walker, supra; Clark v. Wright, 123 Ala. 594, 26 So. 501.
Harsh, Harsh Hare, of Birmingham, for appellee.
The notice or demand to satisfy on record the mortgage in this case was sufficient. No particular form is necessary, and the request is sufficient if the language employed, when fairly and reasonably interpreted, informs the mortgagee that a satisfaction on the margin of the record of the mortgage is demanded of him. Partridge v. Wilson, 141 Ala. 164, 37 So. 441; Henderson v. Wilson, 139 Ala. 327, 36 So. 516; Dothan Guano Co. v. Ward, 132 Ala. 380, 31 So. 748; Steiner v. Snow, 80 Ala. 45; Hoffman v. Knight, 127 Ala. 149, 150, 28 So. 593. The mortgagee of several mortgages executed by any one mortgagor is legally chargeable with notice of the existence of such mortgages, and knows as well as the mortgagor which ones have been paid and which ones have been recorded. Dothan Guano Co. v. Ward, supra. A corporation can only act by agent, and the fact that it has a number of agents, no one of whom may be familiar with all the transactions handled by it, will not excuse it for inadvertence or failure to satisfy a mortgage on demand. Dothan Guano Co. v. Ward, supra; Martin v. Walker, 196 Ala. 469, 71 So. 667; Dittman Boot Shoe Co. v. Mixon, 120 Ala. 206, 24 So. 847; Renfro v. Adams, 62 Ala. 302; Walker v. English, 106 Ala. 369, 17 So. 715. The legal duty is on a mortgagee to satisfy the record without notice; the function of the penalty statute is to enforce this duty. Dittman Boot Shoe Co. v. Mixon, supra.
This is an action for the statutory penalty for the failure to satisfy the record of a mortgage. It was tried by the judge without a jury, and he made a special finding of the facts and rendered a judgment for plaintiff.
In so far as we think it is here material to do so, we summarize the facts as specially found to be as follows: Plaintiff bought one Dodge truck of defendant, with deferred payments in installments, secured by a mortgage on it. That mortgage was recorded in the probate office. It was paid in full, and when the last payment was made, plaintiff told the agent of defendant "to satisfy all records and the mortgage," and the agent promised plaintiff to "fix it up." A few days later defendant mailed to plaintiff the original mortgage and note, but failed to satisfy the record.
We now observe that this suit is not based on that notice, which we presume was verbal. It is not shown to have been in writing, but appears to have been spoken.
Afterwards plaintiff purchased another truck from defendant, in which there were also deferred installment payments secured by a mortgage on it. This mortgage was not recorded. When it was paid, plaintiff wrote defendant a letter which was received, as follows:
"You will find enclosed herewith $15.00 payment, the amount due on Dodge truck, in full.
"Please satisfy all records and mortgage given by Fred Fulmer to the International Harvester Co. of America, for one Dodge Truck.
"[Signed] Fred Fulmer."
Defendant did not satisfy the record of the first mortgage, the only one which was recorded, until after the expiration of thirty days from receipt of the notice, as required by section 9024, Code. The notice is to be construed in the light of collateral facts known to both parties.
The question here is whether the letter, which we have copied, is sufficient to make it clear that it is a notice to enter satisfaction on the record of the first and only mortgage so described which had been recorded. The holding in that respect is an inference from collateral matter in connection with the letter. In reviewing it, the question is whether that is a reasonable inference upon the assumption that the facts as found by the court which support it are true. On such review, it is, of course, helpful to consider the views of this court in respect to analogous situations. It was held that, when there were two recorded mortgages, and the notice was with reference to only one, but did not sufficiently designate which one was intended, it was too indefinite to be effective. International Harvester Co. v. Simpson, 222 Ala. 493, 133 So. 4.
And in another case, where the notice was to "have all mortgages that has (have) been paid satisfied on record, mortgages which I give you," it was held to be sufficient notice under the statute to satisfy any such mortgage which had been recorded in the probate office and paid. It was on the theory that both parties were sure to know what mortgages had been given by one to the other, and what had been recorded and paid, when there was no dispute about either such matter. There was no ambiguity when so considered by either such party. Dothan Guano Co. v. Ward, 132 Ala. 380, 31 So. 748. Similar notices were also thus considered in other cases. Henderson v. Wilson, 139 Ala. 327, 36 So. 516; Partridge v. Wilson, 141 Ala. 164, 37 So. 441; Hoffman v. Knight, 127 Ala. 149, 28 So. 593.
These cases do not conflict with Chattanooga National Bldg. Loan Ass'n v. Echols, 125 Ala. 548, 27 So. 975, where the notice was merely to cancel the mortgage. It was held that a cancellation of the mortgage does not mean its satisfaction on the record.
If the notice is ambiguous in the hands of one knowing the collateral facts whether it is meant to satisfy the mortgage or the record of it, or what mortgage is referred to, it is not sufficient.
In the same letter plaintiff in his case was making satisfaction of a mortgage on a Dodge truck which was not recorded, and notifying defendant to "satisfy all records and mortgage given * * * for one Dodge truck," when there was only one mortgage on a Dodge truck given by plaintiff to defendant, which was recorded, and it had been paid, and was due to be satisfied on the record, about which there was no controversy. Both parties knew all those facts, whether they were held in memory or not, and it is immaterial that the transactions were conducted by different agents of defendant.
Treating the notice in the light of the facts thus known to them both, we think defendant was bound to understand that it referred to the only such mortgage which had been recorded and paid.
Affirmed.
ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.