Ayers v. Butler

ANDERSON, J. Section 1065 of the Code of 1896, prescribing a penalty for a failure to enter partial payments and the date of same upon the margin of the record Avithin 30 days after the request in writing by tne mortgagor to do so, is penal in its nature and must be [610] strictly construed. It cannot be extended by implication. — Jarratt v. McCabe, 75 Ala. 325; Jowers v. Brown Brothers, 137 Ala. 581, 34 South. 827. The request in the case at bar does not appear to have been by the mortgagors, but, as disclosed by the record, as well as the original sent up for the inspection of this court, was made b3r different persons from the mortgagors. The suit is by, and the mortgage introduced was executed by, “Clark Butler” and “Mary E. Butler;” while the written request is signed by “Clark Ruller” and “M. E. Rutler,” and is so signed as to prevent its being read “Butler” without changing the plain lettering in the surname of each signer. It may be that the draftsman intended to sign the names of the mortgagors and that he was authorized to do so; but this is not sufficient, as the mortgagee had the right to act on the notice served on him, and Avas not compelled to obey it unless made by one Avho had authority to do so. Nor does it matter that the request properly described the mortgage, as any disinterested person could describe the mortgage and make the request, yet the mortgagee Avould have the right to disregard any request, unless it disclosed to him that it Avas made by one Avith authority and right to demand the entry of payments. The trial court erred in admitting the request in evidence, in giving the general charge for the plaintiffs, and in not giving the general charge for the defendant. Reversed and remanded. Tyson. C. J., and Boavdeix and Simpson, J.J.. concur.