Southwestern Building & Loan Ass'n v. Rowe

125 Ala. 491

• Court: Supreme Court of Alabama
• Decided: November 15, 1899
• Status: Published

Opinion

HARALSON, J.

1. The instrument executed by Adeline and J. O. Rowe, appellees, plaintiffs below, on the 15th of Jnne, 1895, to W. H. Nance in trust for the appellant, defendant (below, to secure a note that day ■ executed by plaintiffs to defendant, was, as applicable to sections 1065 and 1066 of the Code of 1896, a deed of .trust, and not a mortgage. — Southern B. & L. Asso. v. McCants, 120 Ala. 616. Nance was the'trustee and the defendant association was the cestui que trust. It was held hy ns in the case cited, that the maker of a trust deed to secure a debt due the beneficiary therein, could .not recover from the cestui que trust in such deed, when sued for the penalty for failure to satisfy a deed of trust on record upon written request of its maker. Since that decision, the statutes have been amended (Acts 1898-99, p. 26), and under the amendment of said section 1065, the plaintiffs contend, that the penalty therein provided, is applicable where demand is made of the cestui que trust in a deed to enter on the record partial payments on the debt secured thereby. The contention of defendant is, that'said amended statute does not reach, and has no application to a cestui que trust, in such a deed requiring him to enter partial payments on the deed of record.

We all know, and if is not disputed, that penal -statutes, of the kind of the one in question, 'are to he Strictly construed, and cannot he aided by implication. The said section of the Code as -amended, mentions four classes of persons, who are put under a duty “to enter upon the margin of the record of the mortgage or 'deed of trust the date 'and amount of such partial payments or payment.” These are (1) “a mortgagee,” (2) “or the ■assignee or transferee of a debt secured hy mortgage,” (3) “or trustee * * of a deed of trust to secure a debt,” and (4) “or cestui que trust of a deed of trust to secure a debt.” It then mentions a second class of per-sons on whose demand the persons constituting the first class, just mentioned, are to make this entry on the record, namely, (1) the mortgagor, (2) or a judgment creditor of the mortgagor, (3) or other creditor of the mortgagor having a lien or claim on the property mortgaged, (4) or a purchaser from the mortgagor, (5) or the debtor in a deed of trust. If this were all, the 'statute would simply prescribe a duty without a penalty for a failure to discharge it. It proceeds, however, to prescribe the penalty for its violation in these words: “If for thirty days after such request, (1) the mortgagee, (2) the transferee or assignee of such mortgage, or (3) the transferee or assignee of a deed of trust, fails to make such entry, he forfeits to the party making such request two hundred dollars.” The last named constitute a third class of persons against whom the penalty prescribed may be enforced, and they are only three of the four persons mentioned in the first class, named above, required to make these entries, viz., the mortgagee, or transferee or assignee of such mortgage, or the transferee or assignee of the deed of trust, omitting to mention the cestui que trust of a deed of trust. Against him, no forfeiture or penalty is directed by the statute. Either of the parties mentioned in the second class above may request him to enter payments on the record, and if he fails to do so, no penalty is imposed against him for such failure, and he incurs none. The case is one where the principle is applicable that “where the penal clause is less comprehensive than the body of the act, the courts will not extend the penalties provided therein to classes of persons or things not embraced within the penal clause, even where there is a manifest omission or oversight on the part of the legislature.” We cannot know that the legislature intended more than they have expressed. — 23 Am. & Eng. Encye. of Law, 382 and authorities cited; Brooks v. The State, 88 Ala. 122, 127.

2. As to the other question involved, whether or not payments of the monthly installments of interest, required by the deed of trust to be made, and which were shown to have been made, were such payments as the maker of the deed might require the party charged by law, on proper request of him to make, we need say no> more, than that the question recently received elaborate consideration at our hands, when we held the affirmative -of the proposition. We need not go over the same ground ‘again. — New South B. & L. Asso. v. Bowie, 121 Ala. 465. That case, as was there said, was not in conflict with anything decided in Gwin v. Nat. B. & L. Asso., 121 Ala. 572. The demurrer filed the 11th of November, 1899, was properly overruled. The one filed on the- 14th of the same month, should not have been overruled but sustained. ,

Reversed and remanded.