Summary
In Lewis v. Cannon, 22 Ala. App. 634, 118 So. 911 (1928), the court stated that "We know of no law, and the appellant has cited us to none which requires a record of the transfer of a mortgage in order to make it valid."
Summary of this case from Matter of Ascot Mortg., Inc.Opinion
7 Div. 487.
November 27, 1928.
Appeal from Circuit Court, De Kalb County; W. W. Haralson, Judge.
Action by George P. Lewis against John L. Cannon, for statutory penalty (Code 1923, § 9024) for failure to enter satisfaction of a mortgage on the record thereof after demand in writing. From a judgment for defendant, plaintiff appeals. Affirmed.
See, also, 216 Ala. 515, 113 So. 577.
Defendant's plea 2 is as follows:
"That the defendant transferred and assigned the said mortgage and the indebtedness secured thereby, in writing for valuable consideration to one D. R. Bethune about the time it was due to wit: December 15, 1915, and the defendant was not the owner of the mortgage or the debt secured thereby when said notice to satisfy the same was given to him, nor when the said mortgage was settled or paid, if it has been settled and paid."
Plaintiff's demurrer to this plea takes these objections: That it does not show that said transfer was witnessed or acknowledged as required by law; that it fails to aver that said transfer was recorded, or a matter of record; and that it fails to show that plaintiff had any notice or knowledge of said transfer.
A. E. Hawkins, of Ft. Payne, for appellant.
An assignment of a mortgage, to be effectual to convey the mortgagor's legal title, must be by such conveyance as is required to convey legal title to land in ordinary cases. Sanders v. Cassady, 86 Ala. 246, 5 So. 503; Code 1923, § 6838. The person shown by the record to be entitled to receive payment is the proper party to enter satisfaction on the record. 41 C. J. 812; Federal Land Bank v. Branscomb, 212 Ala. 567, 105 So. 585.
Wolfes Crawford, of Ft. Payne, for appellee.
Defendant had no power, after transfer, to satisfy the mortgage, and his failure to comply with plaintiff's request did not subject him to the statutory penalty. Royal Lbr. Co. v. Ellsberry, 9 Ala. App. 478, 63 So. 785; 27 Cyc. 1416.
The questions presented by this appeal are settled against the contentions of appellant by the case of Royal Lumber Co. v. Ellsberry, 9 Ala. App. 478, 63 So. 785. We know of no law, and the appellant has cited us to none, which requires a record of the transfer of a mortgage in order to make it valid. We are familiar with Acts 1927, p. 496, which authorizes the recordation of certain conveyances and assignments and providing that when so recorded such registration is notice, etc. This statute is for the benefit of transferees and innocent purchasers, but has no effect upon the statutory penalty statute, Code 1923, § 9024, which must be strictly construed, and when so construed applies to legal holder of the mortgage at the time of payment, whether it be the original mortgagee or his transferee. After the mortgagee has transferred the mortgage, he has no right or power to mark the record satisfied. The case of Federal Land Bank v. Branscomb, 213 Ala. 567, 105 So. 585, has no application here. The demurrer to defendant's plea 2 was properly sustained. We find no error in the record, and the judgment is affirmed.
Affirmed.