Perkins v. Matteson

The opinion of the court was delivered by ValentiNE, J.:

We think the findings of fact made by the trial court in this case are sufficiently sustained by the evidence, although it may be that with respect to some of such findings, there may have been some slight evidence against them. The only substantial question in the case is simply whether the findings and the pleadings are sufficient to sustain the judgment. We think this question must be answered in the affirmative. The defendant, F. M; Perkins, was the mortgagee as well as the payee of the note, whatever may have been his real interest therein; and these notes and this mortgage were wholly paid and satisfied, and a demand made for the release of the mortgage, and all this long before this action was commenced. And during all this time, and at the time when this action was commenced and afterward, the records of Phillips county apparently showed that the defendant, Perkins, was the owner and holder of the notes and mortgage, and the plaintiff, Matteson, had no knowledge of anything to the contrary, or at most he had no knowledge that the notes and mortgage had ever been assigned or transferred to Hunt. Section 8 of the act relating to mortgages, and the one under which this action was commenced, reads as follows:

“Seo. 8. When any mortgage of real property shall have been satisfied, it shall be the duty of the mortgagee or his as- *167 signee immediately on demand of the mortgagor to enter satisfaction, or cause satisfaction of such mortgage to be entered of record; and any mortgagee, or assignee of such mortgagee, who shall neglect or refuse to enter satisfaction of such mortgage, as is provided by this act, shall be liable in damages to such mortgagor or his grantee or heirs in the sum of $100, to be recovered in a civil action before any court of competent jurisdiction.”

The authorities cited by counsel on both sides, and supposed to have some application to this case, areas follows; Kurtz v. Sponable, 6 Kas. 395 ; Swenson v. Plow Co. 14 id. 387; Burhans v. Hutcheson, 25 id. 625; Lewis v. Kirk, 28 id. 497; Thomas v. Reynolds, 29 id. 304; Jones on Mortgages, §§ 791, 831, 956, 957, 988, 990.

We think the defendant is liable in this case, and he is liable because he failed to have the mortgage released of record within a reasonable time after the same had been paid and satisfied. Of course a mortgagee may, when he assigns or transfers his interest in the mortgage, so protect himself against future liability or responsibility for any failure on his part or on the part of others to release the mortgage of record when the same has been paid or satisfied, that he will never become liable or responsible for any such failure; and this he may do by simply executing, acknowledging and having recorded a proper assignment of the mortgage. But nothing of this kind was done in this case, nor was any notice of any kind given to the mortgagor of any change in the ownership of the notes or the mortgage, nor did the mortgagor receive any such notice from any source. The recording of an assignment in such a case would be a protection both to the mortgagee and to his assignee. It would protect the mortgagee from all liability for the penalty provided for in said § 8 in case of a failure by the proper person to release *the mortgage of record when the same should be paid and satisfied; and it would protect the assignee from any unwarranted release of the mortgage by the mortgagee. Of course when a negotiable instrument, or a debt of any hind, is assigned, the assignment will in equity carry with it all securities. This has *168 always been the rule in equity. But this rule in equity has never been carried to the extent of doing injustice to parties, nor of overturning rights founded upon the registry laws, or the mortgage laws, or upon any other statutory laws. This case is governed more by the registry laws and the laws relating to mortgages than it is by any rule of either law or equity pertaining to negotiable instruments. A mortgage is an instrument affecting real estate. So also is the assignment of a mortgage. And both in legal contemplation must be in writing. (See Registry Laws; Mortgage Laws, Statute of Frauds and Perjuries, §§5, 6; Statute Relating to Trusts and Powers.) In equity it is sometimes unnecessary that either should be in writing; as for instance, an absolute deed is sometimes construed in equity to be a mortgage, and the assignment of a debt secured by a mortgage is generally in equity construed to be an assignment of the mortgage. But these equitable rules have no application in this case. This case is governed by positive statutes. Under the registry laws all instruments affecting real estate may be recorded. (Registry Laws, §19.) And under the registry laws any unrecorded instrument affect- • ing real estate is void except between the parties and those having actual notice. (Registry Laws, §21; Comp. Laws of 1885, eh. 22, § 21.)

The judgment of the court will be affirmed.

All the Justices concurring.