Murphree v. Farmers' Sav. Bank

BROWN, P. J. [1,2] The institution of a suit within two months after request to enter satisfaction of record of a mortgage in which the fact of payment or satisfaction of the mortgage may be contested by the mortgagor, is a complete defense to an action to recover the statutory penalty provided for in section 4898 of the Code. Whether the issues presented by the bill in equity filed by the defendant against the plaintiff and others were broad enough to embrace the question of the payment or satisfaction of the mortgage here in question was one of fact dependent upon the averments of that bill. The bill itself is not set out in the record, and we must assume, in its absence, that the issues in that case were broad enough to embrace the issue of payment or satisfaction of the mortgage in question, and that the trial court properly gave the affirmative charge requested by the defendant. Alice Bridgeforth v. State, 77 South. 77; 1 Alabama Terminal R. R. Co. v. Benns, 189 Ala. 590, 66 South. 605; Warble v. Sulzberger, 185 Ala. 603, 64 South. 361; Southern Ry. Co. v. Kendall & Co., 14 Ala. App. 242, 69 South. 328; Southern Ry. v. Herron, 12 Ala. App. 415, 68 South. 551. Affirmed. Footnotes [1] Ante, p. 239.