Shields v. Klopf

Lyon, J. The statute under which this action was brought reads as follows: “ Section 2256. If any mortgagee, his personal representative or assignee, after a full performance of the conditions of the mortgage, whether before or after a breach thereof, shall, for the space of seven days after being thereto requested, and after tender of his reasonable charges, rqfuse or neglect to discharge the same as provided in this chapter1, or to execute and acknowledge a' certificate of discharge or release thereof, he shall be liable to the mortgagor, his heirs or assigns, in the sum of one hundred dollars damages, and also for actual damages occasioned by such neglect or refusal, to be recovered in an action.” 1. There was abundant testimony on the trial to support the finding of the jury that the mortgage in question had been fully paid as claimed by the plaintiff. Counsel for the [72] appellant argues, however, that the amount which the defendant testified he paid on account of the mortgage did not equal the amount due thereon for principal and interest. ' Hence he says there was not “ a full performance of the conditions of the mortgage,” and the defendants have not incurred the penalty of the statute. In support of this contention he cites Stone v. Lannon, 6 Wis. 497. In that case only a part of the mortgage debt was paid, and there was an unfulfilled agreement on the part of the mortgagor, when the action was brought, to pay the residue. Whiton, O. J., delivering the opinion of the court, said: “How it cannot be said that the condition of the mortgage was fully performed, because the testimony shows that a further sum was to be paid by Dunn, the mortgagor.” The mortgagee had agreed with Dunn to discharge the mortgage on such partial payment, but this executory agreement was held void for want of a consideration. The decision was made upon the hypothetical case that the agreement was valid. There was another very significant fact in that case not noticed in the opinion. The mortgagee tendered performance of his executory agreement to discharge the mortgage by tendering such discharge to Dunn, the mortgagor, and to one Cleary, the grantor of the plaintiff, who then owned the mortgaged premises. Heither of them would accept such discharge. In the present case the testimony tends to show that the plaintiff paid to the appellant all that he demanded in satisfaction of the mortgage debt, and the appellant accepted the same in full payment thereof. Under these circumstances it is clear that the case is not ruled by that of Stone v. Lannon, and that there was a full performance of the conditions of the mortgage. 2. Counsel for the appellant further maintains that the testimony of the plaintiff shows the alleged payment to have been made on a Sunday, in contravention of the statute in that behalf (sec. 4595, R. S.), hence that he cannot [73] be heard to allege such payment, because by so doing he claims the benefit of an illegal act. The point is not well taken. It is settled that money paid on Sunday, and retained, discharges the debt. Johnson v. Willis, 7 Gray, 164. Indeed no case has been cited to the contrary, and we do not recollect to have seen such a case. In the case last cited it is said: “ It is not on the part of the defendant an attempt to enforce a contract made on Sunday, but a resistance of a claim unjustly set up against right by showing that nothing is due thereon.” (Per Dewey, J.) 3. A demurrer to the complaint for defect of parties was interposed and overruled. It was claimed that the statute under which the action was brought in effect imposes a fine or forfeiture, the clear proceeds of which belong to the school fund by virtue of the constitution (art. X, sec. 2), and hence that the state of Wisconsin should have been made a party plaintiff in the action, pursuant to E. S. secs. 3295, 3297. We 'think this objection is not well taken. . The “ one hundred dollars damages ” given by statute is neither a fine nor a forfeiture; it is nothing more than exemplary or punitory damages, which the successful plaintiff recovers in the action in addition to his actual damages. 4. The only remaining question to be considered is whether the element of good faith is involved in the action, that is to say, -whether the defendants can be held liable for the penalty of the statute if they honestly believed that the mortgage debt was still unpaid when the discharge of the mortgage was demanded of them. As a general rule, no doubt, the penalties of the law are aimed against those who wilfully and knowingly violate its requirements. Gases are not wanting in which this rule has been applied to penal statutes from which the words wilfully, knowingly, and the like, as descriptive of the offense of prohibited act, have been omitted. Cohn v. Neeves, 40 Wis. 393, belongs to this class. That was an action to recover treble damages for [74] the conversion of logs. The statute under which the action was brought (sec. 5, ch. Taj. Stats.) provided that “ whoever shall convert to his own use, without the consent of the owner thereof, any logs, timber, boards, or planks floating in any of the waters of this state, or lying on the banks or shores of such waters, or on any island whereon the same may have drifted, except, as in this chapter provided for, shall be liable to the owner thereof in treble the amount of damages.” It was held, notwithstanding the general language of the statute was sufficiently broad, if literally interpreted, to include any conversion, yet the statute should be expounded according to its fair meaning and true intent. The present chief justice, delivering the opinion of the court, said: “Observing this rule of interpretation, ■looking at the object and purpose of the statute, we cannot think it was intended to apply to every conversion of this kind of property, situated or found as described, without regard to the question whether the conversion was wanton and wilful or not.” . A perusal of the opinion will show that the court reached its conclusion because of certain other provisions in the same statute whioh indicate the intention of the legislature that it should be so construed. ' It is entirely competent for the legislature to impose a penalty for the refusal to discharge a mortgage, regardless of the good or bad faith of the holder thereof. On the authority of (John v. Weaves, we must look into the statute itself, which is general in’its terms, to ascertain whether the legislature intended that it should be restricted in its operation to those wilfully offending’against it. We find in sec. 2256 a satisfactory indication that the general language of the statute was intended to operate without restriction and without regard to the good or bad faith of the holder of the mortgage. The statute gives to any person upon whom the demand is made to discharge a mortgage, seven days in which to determine whether-he will discharge it or not. If [75] the application of the statute is to be limited to those only who wilfully and knowingly refuse to discharge a mortgage, it is fair to presume that no days of grace would have been given. The seven days were undoubtedly given to enable the person upon whom such demand has been made, if he doubts whether the mortgage has been paid, to ascertain the facts for himself. After the expiration of that time he acts at his peril of the fact, and if the mortgage has been paid and he refuses to discharge it he is subject to the penalty of the statute. In the present case the jury must have found that the mortgage debt was paid personally to the appellant. Such being the case, it is difficult to perceive how he can successfully maintain that he refused in good faith to discharge the mortgage, believing that the debt was not paid. • Upon the whole case we find no sufficient grounds for disturbing the judgment. By the Court.— Judgment affirmed.