Jarratt v. McCabe

SOMENYILLE, J. The action is for a penalty of two hundred dollars, based upon the alleged failure of the defendant, as mortgagee, to enter satisfaction of a mortgage upon the margin of the record, within three months after payment of the mortgage debt, and after request to make such entry in accordance with the provisions of the act of March 1st, 1881, amendatory of sections 2222 and 2223 of the Code of 1876. Acts 1880-81, p. 32; Acts 1878-79, p. 70. The statute requires that such request should be made by the mortgagor, and that it must be made in writing. There were two mortgagors in the present case, Jarratt and Scott, only one of whom made the requisite statutory request, but both of whom unite as co-plaintiffs in the action. The question raised for decision is, whether a written request signed by one of the mortgagors, in his own name, but with the knowledge and concurrence of the other, is a sufficient compliance with the statute. The statute giving the penalty is obviously penal in its nature, and must be strictly construed. It can not be extended by implication. The request to enter satisfaction must, for this reason, be made by all the interested parties — by both of the mortgagors, and not by one of them alone in his own name. This is the letter of the statute, and comports also with its policy and its spirit. The right to sue for the penalty is a joint one, given to both of the mortgagors, who are required to join in an action for its recovery. It could not be brought in the name of either alone. Nor would one be entitled to judgment for his moiety, if his co-plaintiff should fail.—Harris v. Swanson & Bro., 62 Ala. 299. No one could be regarded as a “ party aggrieved” w-ithin the meaning of the statute, unless he had himself made the request, and there had been an unlawful neglect of the mortgagee to comply with it. It is clear that a verbal request, or one made before payment or satisfaction of the mortgage, would avail nothing. It must be in writing, and [327] in the name of all the parties who are interested in the recovery of the penalty. This is in harmony with the rule as to notices to quit from landlords to tenants. The sounder view in such cases is, that if the demise be by three, notice by two will be insufficient to lay the foundation for summary proceedings to eject the tenant from the premises. All are required to join in such a notice in order that it may be binding upon the party notified, as to the entire interest represented by the opposite parties. Wade on Notice, § 616-618 ; 1 Wash. BealEst. (4th Ed.) 606-, * 386. The reasons are far more forcible why the same rule should prevail in cases belonging to the class like that now under consideration. The case of Bell v. Wilkinson, 65 Ala. 477, in no wise conflicts with the foregoing view. It was there held that a request made by an authorized agent, or attorney, in the name of the mortgagor, was sufficient. So the princple declared in Renfro v. Adams, 62 Ala. 302, holding sufficient a request to one of several members of an existing partnership, rests upon the rule that each partner is an agent for the others as to all matters within the scope of the partnership business, and notice to one' is notice to all. The evidence in the present case does not show a written notice or request in the name of both of the plaintiffs, but only in the name of one them. This was insufficient to authorize a recovery, and the court correctly so charged the jury. Judgment affirmed.