Lewis v. Cannon

SAYRE, J. Tbe report of- tbe case shows count 2 of appellant’s complaint. Tbe trial court sustained appellee’s demurrer to this count, and this ruling is assigned for error. Tbe count in question proceeded upon tbe theory that appellee’s satisfaction of tbe mortgage, entered upon the mortgage record, was not a compliance with tbe statute (section 9023 of the Code) for that said entry of satisfaction was not witnessed by tbe judge of probate, or his clerk, as required by tbe section, and hence that appellee was answerable under section 9024. We think tbe count stated a cause of .action. Tbe statute (section 9023) provides for an entry of payment or satisfaction on the margin of the record of tbe mortgage, and that “such entry must be witnessed by tbe judge of probate, or bis clerk, who, in bis official capacity, must attest said satisfaction,” and provides, further, for tbe entry of satisfaction by an attorney in fact; but tbe last-stated provision is not drawn into question in this case. Tbe requirement of attestation by tbe judge of probate, or bis clerk, 'was designed, of'course, to prevent unauthorized or fraudulent cancellations, and because, without such attestation, subsequent purchasers and incumbrancers are not affected by tbe notice, of payment or satisfaction, the statute intends to provide to tbe end that tbe owner, after be has paid or satisfied bis debt, may be free to deal with his property as unincumbered. Tbe entry of satisfaction alleged in count 2 ^as not a compliance with tbe statute, and defendant, on proof of tbe allegation, was liable as provided by section 9024 of tbe Code. We~ so bold upon tbe reason of tbe matter, and because in Felt v. Covington, 134 Miss. 466, 99 So. 1, and Mueller v. Renkes, 31 Mont. 100, 77 P. 512, such was held to be the proper construction of statutes very like that here in question. The Mississippi statute is quoted in tbe cited ease; the Montana statute is found in section 3845 of tbe Montana Civ. Code of 1895. Nor do we think a different result can be reached on tbe theory that section 9024, providing the penalty for which appellant sued, is broader than section 9023, providing the entry of payment or satisfaction on the margin of the record — this for tbe reason that, while tbe last-mentioned section makes no express reference to the matter of attestation, it does provide tbe penalty in ease tbe mortgagee, assignee, etc., “fails to make such entry,” meaning, as we apprehend, an entry attested as prescribed in tbe preceding section, nor does any rule of strictness in tbe interpretation of penalties lead to a contrary conclusion. To give tbe statute tbe meaning and effect contended for would virtually ignore tbe plain meaning of tbe terms employed and, in part at least, destroy tbe efficacy of tbe remedy therein provided. Reversed and remanded. ANDERSON, C. 3., and GARDNER and THOMAS, JJ., concur.