Southwestern Building & Loan Ass'n v. Acker

McCLELLAN, C. J. Reaffirming the case of Southern Building & Loan Association v. Rowe, 125 Ala. 491, it must be held that the trial court erred in refusing to give the affirmative charge requested by defendant on the second count of the complaint. The request for the entry of partial payment on the margin of the record of the deed of trust executed to Johnston to secure a debt due the defendant was made to the defendant, the cestui que- trust in the conveyance, and its failure to comply therewith is the ground of complaint set forth in the second count. As was ruled in the case cited, section 10G5 of the Code as amended by the act of February 23, 1899, (Acts, 1898-9, p. 26) imposes no penalty upon the cestui que trust in such a deed for failure to enter partial payments on the margin of the record. There was evidence before the jury, tending to show that only partial payments had been made — that there [526] had been no payment or satisfaction in full, and hence it cannot be said that the error in question was without prejudice to the defendant. Reversed and remanded.