#### Eaton vs. Copeland.

In an action by tbe owner of land which had been mortgaged by his grantor, to recover from the mortgagee the statutory penalty for a refusal to discharge the mortgage of record (the same having been paid), it appeared that the defendant, after he was first applied to by the plaintiff for such discharge, had given to *the mortgagor*a satisfaction piece, but that it had never been recorded, and that when subsequently requested by the plaintiff to execute such discharge, the defendant refused or neglected to do so, but said nothing as to his having executed such an instrument. *Held,*that the court did not err in instructing the jury, “that if they believed the satisfaction piece was given to the mortgagor to be kept in his pocket, and to be used as a defense to such actions, and not to be recorded as a discharge of the mortgage, it was a fraud on the plaintiff, and no defense to this action; and that the fraud might be inferred from the circumstances.”

ERROR to the Circuit Court for *Fond du Lac*County.

*Copeland*commenced an action against Baton, July 25,1862, under sec. 46, chap. 86, R. S., for the refusal or neglect of the latter, for more than seven days after due request, to discharge *219of record a certain mortgage upon land belonging to Copeland., or to execute a satisfaction piece presented to bim by tbe plaintiff for that purpose. Tbe complaint described tbe mortgage as having been executed to said *Eaton*by William Eob-erts and J. E. Eoberts, bis wife, dated December 6, 1856, and recorded on tbe 18tb of tbe same month in a certain volume and page of the records in the register’s office in said county; it also alleged that at tbe time tbe plaintiff requested tbe defendant to execute such discharge, &c., be tendered bim bis reasonable charges therefor; and that tbe conditions of tbe mortgage bad at that time been fully performed, and tbe plaintiff Was tbe owner of the premises described in it. Answer, a general denial. On tbe trial, tbe following facts appeared in evidence. *Eaton*sold tbe land to William Eoberts in 1856, and to secure notes for $800 of tbe purchase money, took a mortgage back from said William and bis wife, J. E. Eoberts. In tbe record of tbe mortgage, tbe name of tbe wife was written “T. E. Eoberts.” In May, 1858, Eoberts and wife conveyed tbe land to James A. Loomis. *Eaton*then surrendered tbe notes and mortgage in question, the latter having indorsed upon it an acknowledgment of satisfaction. *Copeland*then purchased tbe land and took a deed of it from Loomis, June!, 1858. About tbe 8d of July, 1862, be went to *Eaton's*office and banded bim a dollar, and then stated that tbe money was given on condition that be *{Eaton)*would agree to discharge tbe mortgage of record. *Eaton*answered, “ Then you bad better take back your money,” and returned it. On tbe 8th of tbe same month, *Eaton*executed a satisfaction piece for tbe mortgage, which, was in the possession of Eoberts at tbe time of tbe trial, but bad never been recorded, and there was no evidence as to tbe time when or tbe purpose for which it was delivered to Eoberts. Afterwards *Copeland*• bad a second conversation with *Eaton*in regard to a satisfaction of tbe mortgage. His testimony in regard to it was as follows: “ My counsel made out a satisfaction piece, and I *220earned it to the defendant, at the Lewis House in tbis city, and held it up before him to look at, and put down on the desk two shillings for him to execute it; and said that if that was not enough I would pay him more. He stood a while and made no reply, and then turned around and left me. He did not execute the paper. This was two or three weeks before this suit was commenced.” As a witness in his own behalf, *Eaton*testified in relation to the same transaction: *“*When *Copeland*came to me at the Lewis House, he brought a satisfaction piece in the usual form, I believe. I did not say anything about it, because I never had any such mortgage as described therein, and because I did not think the tender sufficient if it was my mortgage, the usual fee for acknowledging a satisfaction piece being twenty-five cents.” *Eaton*objected to the admission in evidence of the record of the mortgage to him from Roberts and wife, on the ground that it was not the same mortgage described in the complaint; but the objection was overruled. He also asked the court to instruct the jury that there was no sufficient sum tendered at the Lewis House; but the instruction was refused. He then asked the court to charge the jury that having once discharged the mortgage he could not be called upon to do it again; but the court qualified this instruction by charging the jury, “that if they believed that the satisfaction piece executed to Roberts was given to him to be kept in his pocket, and for the purpose of being used as a defense to actions of this nature, and not for the purpose of being put upon record as a discharge of the mortgage, then it was a fraud on the plaintiff, and no defense to this action; and that the fraud might be inferred from the circumstances.” The court further instructed the jury, that they were to say, from the evidence, “ whether the plaintiff did demand of the defendant a satisfaction of the mortgage described in the complaint, as alleged, and whether he tendered to the defendant a reasonable sum for the execution of any satisfaction piece which he had asked the defendant to sign, and whether the *221sum tendered was a reasonable sum for signing tbe same; wbicb was all tbe plaintiff requested tbe defendant to do.” Yerdict and judgment for tbe plaintiff.

*B. P.*Baton, in person:

This being an action to recover a penalty, tbe statute under wbicb it is claimed should receive a strict construction. 5 Wis., 497. Before tbe plaintiff is entitled to recover, be must show, 1. Tbe existence of tbe mortgage described in tbe complaint, and that it was an incumbrance wbicb be bad a right to have removed. 2. That tbe defendant bad refused to discharge it after a tender of bis reasonable charges therefor, or to execute and acknowledge a certificate ot discharge after demand and tender. In this case, tbe debt having been paid, tbe lien of tbe mortgage was gone, and tbe mortgage, having been satisfied and discharged on its back, was dead. 18 Johns., 7 and 110; 3 Yt, 561; 1 Cow., 122; 1 N. H., 132; 6 Hill, 65; 4 W. &S., 426; 8 id., 22; 10 Ohio, 433. And the plaintiff being a *bona fide*purchaser, tbe mortgage was no lien as to him; and not being recorded, it was no cloud upon his title.

*J. M. Qilleit,*for defendant in error.

*By the Court,*

Cole, J.

We have examined tbe record in this case, but can discover no error in the proceedings which would authorize a reversal of tbe judgment. Tbe action is brought to recover tbe penalty given by section 46, chap. 86,® R S.,'for tbe refusal or neglect of a mortgagee to discharge of record a mortgage wbicb had been paid. Tbe questions of fact, under proper instructions, were left to tbe jury. Tbe jury were told that they must say from tbe evidence that tbe plaintiff demanded of the defendant a satisfaction of tbe mortgage described in bis complaint, after tendering a reasonable sum for tbe execution of any satisfaction piece, and that this demand was refused, before they could find for tbe plaintiff We think tbe circuit judge properly told tbe jury, that if it was intended that tbe satisfaction piece wbicb was given Eoberts should be kept in bis pocket and not put upon record as a dis*222charge of tbe mortgage, but was to be used as a defense' to this action, then it was a fraud upon tbe plaintiff, and could not defeat a recovery. This is tbe substance of tbe charge of the court, and we cannot see that it is open to any objection. For clearly the statute penalty is given because a party unreasonably neglects or refuses to discharge of record a mortgage which has been paid, and it is no answer to say ■that a satisfaction piece has been executed and placed in the hands of one who is to keep it in his pocket. The appellant contends that if the debt was paid the lien of the mortgage was discharged, and that it could injure no one if not discharged of record. But this is not the theory of tbe statute. That proceeds upon the idea that “after a full performance of the conditions of the mortgage,” the mortgagor or his assigns may be greatly prej udiced because the mortgage is not discharged of record. It may prevent a sale of the property, or throw suspicion upon the title, and hence this penalty to secure its satisfaction upon the record.

The variance between the mortgage described in the complaint and the one recorded, was properly disregarded. At most it was a mere mistake in regard to one of the initials of the wife of the mortgagor. Tbe appellant doubtless well knew what mortgage he was asked to discharge.

The judgment of the circuit court is affirmed.