Perryman & Co. v. Smith

HARALSON, J. By section 1868 of the Code, a mortgagee whose mortgage is recorded, and who has received ■ partial payment on it, must, on request of the mortgagor in writing, enter on the margin of the record of the mortgage, the date and amount of such partial payment or payments ; and if, for thirty days after request, he fails to make such entry, he forfeits to the party making such request, two hundred dollars. The facts alleged in the complaint to entitle the plaintiff to recovery, seem to have been satisfactorily established, if the-paper set out in the record, relied on as a notice to the mortgagees, to enter on the margin of the record of the mortgage, the date and amount of the partial payment made on the mortgage debt, is sufficient. We are constrained to hold, however, that this paper was not a notice, such as the statute requires, to enter a partial payment on the record, which, when made, goes pro tatito, as a relief to all the property in the mortgage ; but rather, a notice to release lot 261 from the mortgage, and satisfy it entirely as-to that lot, without the payment having any reference to the other property embraced therein, a requirement which is not within the statutory provision, as to entering partial payments. Whatever may be the liabilities of defendants to plaintiffs, for a failure to release said lot from the mortgage, that does not constitute a sufficient reason for enforcing the statutory penalty -for a failure to enter, a partial payment, in the absence of.the specific notice to. do. so( required by the statute in such cases. No particular form of words, it is true, is necessary; but to come up to the requirements of the statute, the notice must be sufficiently definite to inform the mortgagee that entry of the partial payment is desired, and that the statutory duty is required of him.—Steiner & Bro. v. Snow, 80 Ala. 45. [576] The judgment of the court below is reversed, and one will be here rendered in favor of the defendants. Reversed and remanded.