L. & E. Lamar v. Smith

MoOLELLAN, O. J. This is an action of debt prosecuted by Smith against L. '& E. Lamar to recover the penalty prescribed by section 1066 of the Code for failing for two months after written request so to do to enter satisfaction of a mortgage, executed by the plaintiff to the defendants, on the margin of its record in the office of the judge of probate. The complaint-contains three count®. There were demurrers to some of the counts and a motion to strike a part of one of them. Nine pleas were interposed by defendants. There were motions to strike many of the plea®, and there were demurrers to several of them. There were also quite a number of replications, and demurrers to them severally and motions to strike.- But none of the motions to strike appear by the bill of exceptions, nor the court’s action thereon. Hence that action cannot be reviewed. And there is no judgment shown by the transcript upon any of the demurrers interposed in the case. So the rulings of the trial court upon them cannot be revised here. Looking to the bill of exceptions, we find that the only [421] issue in tlie case which was really contested was whether Smith, the mortgagor, made the .statutory request for the entry of satisfaction of his mortgage on the margin of the record, it being' admitted or proved without conflict that the mortgage was executed and recorded, that it had been fully paid, and that defendants failed for more than two months after they received such request as was made to enter satisfaction on the margin of the record. The request relied on by plaintiff was made in the following letter: ‘‘William W. Quarles, Attorney at Law and Solicitor in Chancery. — Selma, Ala., Dec’r. 30-th, 1898: . Messrs. L. & E. Lamar, Selma, Alabama, Dear Sirs: — Having today received your check for $13(3 and some cents, in payment of the judgment recovered against- you by liobert Smith, in the circuit court of Dal- - las county, September 20th, 1898, and not desiring to put you to the trouble of any further litigation, if avoidable, I beg to 'submit the following: On or about May 13th, 1892, you sued out a writ of detinue against said liobert Smith, and in order that a writ of seizure of the property might issue, made bond in the sum of $1,000 to -said Smith by your firm and selves individually, on ■condition that if you failed in the suit, you -would pay all costs and damages sustained by him. He has at least suffered damages to the extent of his lawyer’s fee, which is 15 per cent, on the amount involved in the suit. The balance on the account claimed January 1, 1892, is $507.32, interest on this -sum at 8 per cent, to September 20th, 1898, (6 years, 8 mos. 20 days), is $272.73; and the judgment $133.47 makes the total amount involved $913.53, of which 15 per cent, is $137.02. Which last sum is a very reasonable fee. I shall be glad if agreeable to you to have this settled at once, and without suit. Please also satisfy the record of said Smith mortgage to you for $2,600, of date February 2d, 1891, and recorded in book 131, on page 326, in Probate Office. I remain, Yours truly, W. W. Quarles.” It was not controverted that Quarles wrote this letter or that defendants received it on the day of its date or the succeeding day. It was fully and competently proved by the testimony of Smith and Quarles that the former authorized and requested the latter to make the necessary request to the [422] Lamars to enter satisfaction of the mortgage on the mar-gin of its record; and it is not questioned that Quarles made the request shown in the letter under and in pursuance of such authorization by Smith, and in compliance with the latter’s said request. But this authorization and direction of Smith to Quarles was oral, and it is insisted that as the statute requires the request to the mortgagee to be in writing, the authorization by the mortgagor to an agent or attorney to prefer the request must also be in writing. 'This position is not tenable. It is elementary that an authorization to execute any paper not under seal in the name or on behalf of the principal may well be oral, except, of course, in those cases where the power of attorney is by statute required to be in writing. Again, it is contended that the written request provided for by section 1066 of the Code cannot bo made by an agent or attorney at all, but only by the mortgagee himself; but this court has ruled adversely to this position in express terms and upon very satisfactory considerations.—Bell v. Wilkinson, 65 Ala. 477. But it is said that granting the request may be .made 'by an agent and conceding that Quarles was Smith’s agent in this instance to make the request, yet he did not make the request as Smith’s agent, but individually only, and bonce the request was abortive. Upon this it is conceded that the request must be made for and in behalf of the mortgagor. As a matter of fact, it is clearly shown here that the request was made for and in behalf of the mortgagor. But the point of objection is that the defendants were not informed by the letter that Quarles was acting as the agent or attorney of the mortgagor and made the request in the capacity of such agent or attorney ; and upon this it is insisted that inasmuch as it was necessary to go outside of the letter for evidence that it was written for and in behalf of the mortgagor, and to prove the fact by oral testimony, the letter was incomplete and imperfect in itself as a request in writing on the part of the mortgagor — the perfected request, the idea is, resting thus in part upon the writing and in other part upon oral testimony. We are of opinion that this position of appellant is well taken. The statute re [423] quires the entry of satisfaction only “on the request in writing of the mortgagor.” It is a highly penal enactment, and is to be strictly, exactingly construed, as has been many times held by this court. The manifest intent of the requirement under consideration was to make it; certain by written memorial in all cases whether the required request has been made by the mortgagor. This intent will not be effectuated if it be allowed that the request may be partly written and partly spoken, that so far as the demand itself is concerned there must be a 'writing, but that a® to the party who makes the request no writing is necessary. The purpose was to require a writing which would in and of itself inform the mortgagee not only that such demand was made upon him, but also that it was made by a party having a right to make it, and which when laid down 'in court would speak for itself and tell its own complete story, and leave nothing to the uncertainties of oral testimony. Such would not be the case even where the mortgagor hands to the mortgagee a writing in the form of the statutory request, but not signed by him; and, a fortiori, such would not be the case where the writing is by a third party who signs his own name to it without setting forth that he is acting for the party entitled to make the request. In neither case is there “a request in writing by the mortgagor” or for and on behalf of the mortgagor, within the letter, or even the spirit, of the statute." The letter here in evidencie does not show on its face that the request to enter satisfaction which it contains is preferred by the mortgagor or by his agent, or attorney; and it is not signed by the mortgagor, nor by one purporting to be his agent or attorney, but by W. W. Quarles as an individual. It does not apprise the mortgagees of all they are entitled to know by it, and it would not tell its own complete story in a court of justice. That it did not in this case is shown by the mass of extraneous evidence adduced to show that apart from the paper the defendants had knowledge or notice that Mr. Quarles was acting for the mortgagor. All this should have been excluded, and the court should have held that' the writing was insufficient as a request by the mortgagor under [424] tbe statute and charged the jury without hypothesis to return a verdict for .the defendants. The case of Bell v. Wilkinson, 65 Ala. 477, is not an authority on the point last considered. When that case was decided the statute did not require a written request. The request was oral and by the mortgagor’s agent thereunto orally authorized. The transcript in that case shows — what does not appear in the report of it — that the agent stated at the time he made the-request that he was therein acting for the mortgagor. This was a complete oral request as then required. So the writing here would be adequate if it had stated that Quarles was .acting for the mortgagor. For he errors indicated above, the judgment must he reversed. The cause is remanded.