Partridge v. Wilson

TYSON, J. It is entirely permissible to join counts for separate and distinct causes of actions to recover penalties under section 1066 of the Code of 1896. — Hoffman v. Knight, 127 Ala. 149. The writlen request given by the mortgagor, as set out in the-first and second counts of the complaint is in this language: “You will please cancel all mortgages against me on the record, at once.” The prime question presented by the demurrer to these two counts is whether this request is sufficient to impose the duty on mortgagee of entering “the fact of payment or satisfaction on the margin of the record of the mortgage.” It has been repeatedly said that no particular form of words is necessary to constitute a sufficient) request, and that it is sufficient if the language employed, when fairly and reasonably interpreted, informs the mortgagee that a satisfaction on the margin of the record of the mortgage is demanded of him. — Henderson v. Wilson, 139 Ala. 327; 36 So. Rep. 516, and other authorities there cited. liad the request here under consideration employed the word “satisfy” instead of.“cancel,” it, would certainly be sufficient. — Hoffman v. Knight, supra; Dothan Guano Co. v. Ward, 132 Ala. 380. [167] It is undoubtedly true, as said in Chattanooga National Building & Loan Association v. Echols, 125 Ala. 552, where the request was simply to cancel the mortgage, no reference being made to the record of it, that it is not notice to enter satisfaction of .it on the margin of the record. But where the demand is as here, to cancel the mortgage on the record;, it is not possible, it seems to- us, for the mortgagee to have misundei-stood that he was requested to enter satisfaction of the mortgages on the record. The request in Steiner v. Snow, 80 Ala. 45, which was criticised in Ohaitanooga National Building & Loan Association v. Echols, supra, was “Please cancel my mortgage.” These words standing alone,' fairly and reasonable interpreted, meant nothing more- than a cancellation of the mortgage itself. Had it contained the additional words “on the record,” as this one does, making the context read “please cancel my mortgage on the record” it would not have been subject to the criticism and doubtless, as indicated by the language o-f the opinion, none would have been indulged against it. In Jordan v. Mann, 57 Ala. 595, which was decided when an oral request under the statute was sufficient, the request, according to the plaintiff’s testimony, was, referring to the mortgage: “Take it off the record books, and fix it up all right: I don’t want to he bothered with •it any more, I want it settled on the docket,” was held su fficient, if the jury determined it Avas in fact made. It Avas there said: “The request the statute contemplates, is simply notice from the mortgagor that the performance of the duty is i-equired1 or desired. No particular form of Avords is nclcessary, hut the language employed must he such as- Avill inform the mortgagee that performance of the duty is desired. He must accept and art up it, according to its fair and reasonable meaning and as it would be understood by others of common intelligence.” T\re feel constrained to hold, that the request, here is sufficient to impose the duty upon defendant of complying Avith the mandates of the statute. It follows from AAdiat Ave have said that the first and second counts of [168] tlie complaint as originally found were not subject to those grounds of the demurrer challenging the sufficiency of the request. Furthermore, they were not open to any of the other objections taken to them by the demurrer.— Williams v. Bowdin, 68 Ala. 126; Hoffman v. Knight, supra. It is only necessary to say of these counts after amendment that the additional grounds of demurrer interposed to them, went only to the amendment and not to the whole of the counts. The amendment consisted simply of an averment of the legal effect of the written request which neither adds to nor detracts from their sufficiency as pleading. Reversed and remanded.