Opinion
8 Div. 285.
March 12, 1931.
Appeal from Law and Equity Court, Franklin County; B. H. Sargent, Judge.
H. H. Hamilton, of Russellville, for appellant.
Plaintiff should have been permitted to prove payment or satisfaction to the defendant, that he had the mortgage and stated he was the owner. The sufficiency of the evidence was for the jury. Scales v. Central Iron Coal Co., 173 Ala. 639, 55 So. 821; Mobile Light R. Co. v. Portiss, 195 Ala. 320, 70 So. 136; Stewart Bros. v. Ransom, 200 Ala. 304, 76 So. 70; Farrow Mercantile Co. v. Davidson, 200 Ala. 671, 77 So. 45; Bailey v. Porter, 21 Ala. App. 414, 109 So. 123.
W. H. Quillin, of Russellville, for appellee.
The mortgagee is not liable for the statutory penalty if he has transferred the mortgage. Harris v. Swanson, 67 Ala. 486. Filing of sworn plea by defendant that he was not the owner of the mortgage cast upon plaintiff the burden of proving that he was such owner. Peevey v. Tapley, 148 Ala. 320, 42 So. 561. When plaintiff introduced in evidence the note and mortgage, he introduced the entire mortgage, including the transfer and indorsement written thereon. Union Iron Works v. Union Naval Stores Co., 157 Ala. 645, 47 So. 652. The statute requires written notice sufficient to inform the mortgagee that the performance of the duty is requested. Notice to John Foster was not notice to J. T. Foster. Clark v. Wright, 123 Ala. 594, 26 So. 501; Parks v. State, 21 Ala. App. 177, 106 So. 218; American Ry. Exp. Co. v. Powell, 206 Ala. 266, 89 So. 546; Sharp v. State, 22 Ala. App. 562, 118 So. 238; Morningstar v. State, 52 Ala. 405; Nugent v. State, 19 Ala. 540; Shoults v. State, 208 Ala. 598, 94 So. 777.
This is an action for the statutory penalty for failing to satisfy a mortgage by the mortgagor against the mortgagee under section 9023 of the Code of 1923.
The mortgage was made to J. T. Foster, and the notice was directed to John Foster, but the proof shows that J. T. and John Foster were one and the same person, and that the notice was served on the person to whom the mortgage was given.
While the notice could have been more specific, it was sufficient to apprise the mortgagee that the mortgagor desired a surrender of the mortgage and the satisfaction of same on the record. True, it did not describe the mortgage, but the proof fails to show the existence of any other mortgage between these parties, and the mortgagee must have known that the mortgage in question was the one to which the notice referred. New South Building Loan Ass'n v. Bowie, 121 Ala. 465, 25 So. 844; Jordan Sons v. Mann, 57 Ala. 597; Steiner Bro. v. Snow, 80 Ala. 45; Loeb v. Huddleston, 105 Ala. 257, 16 So. 714.
The suit was against the mortgagee, and, when the plaintiff introduced evidence tending to show satisfaction of the mortgage and proved the notice and failure to satisfy, he made out a prima facie case, and the burden was on the defendant to prove that he had transferred the same and was not the owner when the notice was given to satisfy the record, notwithstanding his sworn plea setting up a transfer. This was not a plea denying the defendant's ownership.
The plaintiff introduced the mortgage "with all entries thereon of recordation." This was a limitation and did not conclude or estop the plaintiff by an ex parte entry on the mortgage by the defendant subsequent to the delivery and recordation of same. On the other hand, even if the indorsement had been introduced as evidence when the mortgage was, the plaintiff should have been permitted to show that defendant still claimed to have and own the mortgage after the notice was served. The entry may have been false or the instrument may not have been delivered and the defendant would be the owner notwithstanding the indorsement, and this evidence did not change or contradict the contract, as the indorsement was not a part thereof, but was a mere ex parte statement by the defendant.
Section 9057 of the Code, cited by appellee's counsel, has no bearing on this question as said provision refers to negotiable instruments.
The trial court erred in excluding all of the plaintiff's evidence and in not permitting the case to go to the jury, and the judgment of the law and equity court is reversed, and the cause is remanded.
Reversed and remanded.
GARDNER, BOULDIN, and FOSTER, JJ., concur.