The Montgomery advertiser., 1904-12-12
LYNN vs. BEAN.

Action to recover statutory penalty for
 failure to enter partial payment on
 margin of record of mortages--Ap-
 peal from the Circuit Court of Nor
 gan.
 I. Action to recover penalty TOT failure to enter partial payment on margin of the mortgage record; suf- ficiently of complaint-A complaint sufficiently states a cause of action for the recovery of the statutory penalty. which claims of the defendant $200, because defendant failed to enter upon the margin of the record of a mortgage executed on April 11th, 1900, by plaintiff to defendant. which mortgage was recorded in the office of the Judge of Probate of Morgan County Ala. a partial payment of $23.50 which plaint ff had made to defendant and defen- dant so failed to enter such partial payment for thirty days after plaintiff had in writing requested the defendant to make such entry"
 2. Pleading and practice; rulings upon motion to strike pleas: not re- viewed unless shown by bill of excep- tions-the rulings of the trial court upon motions to strike from the file certain pleas. can not be reviewed on appeal unless such motions and the rulings thereon are presented by a bill of exceptions.
 3. Action to recover statutory penal ty for failure to enter partial payment on margin of record sufficiency of re- quest.-A written request. duly dated. signed by a mortgager. and addressed to a mortgagee. stating: You are hereby requested to place a credit of $23.50 on the margin of record of mort gage that I gave you in 1900" is suf- ncient, 1t appearing that said mort gagor only gave one mortgage to said mortgagee during the year 1900; and in an action to recover the statutory penalty for failure to enter a partial payment on the margin of the record after such request, said written request is admissible in evidence.
 A. Action to recover statutory penal ty for failure to enter partial payment on margin of record: admissibiIity of evidence.-In an action by a mortgagor against a mortgagee to recover the statutory penalty for failure to enter partial payment on margin of record of mortgage after being requested in writing so to do, where a witness for the plaintiff testified that he had de- livered the written request to the de- fendant, it is not competent for the defendant to ask said witness. if he (the defendant) did not tell the wit ness at the time he delivered said re- quest. that the mortgage referred to had been settled and satisfied.
 5. Same; same.-In such a case 1t is not competent for the defendant to prove that after the institution of the suit. he had entered on the margin of the record of the mortgage, that said mortgage was satisfied.
 6. Payment; application thereof Where mortgagor is indebted to his | addition to the mortgage debt upon his making a payment in money to the creditor he has the right to have the payment applied to either debt he may desire: and if he directs the creditor to apply the payment to tAe credit of the mortgage debt, the creditor has no right to apply 1t to the open account
 '. Same: same; when receipt not conclusive.-In such a case where upon the making of a payment, the creditor gave to the debtor receipt, stating that the payment was directed to be so applied. but is subject to explanation. and if the debtor did not agree to it's being so applied, and directed its ap- plication to the mortgage debt, then such receipt does not show that the payment was made on the book ac- count
 5. Actlon against mortgagee to re- cover statutory penalty for failure to enter partial payment on margin of mortgage record; burden of proof.-In an action brought by a mortgagor against a mortgagee to recover the statutory penalty upon the latter's fail ure to enter a partial payment upon the margin of the record of the mortgage. after being requested in writing so to do, where the defendant, by special plea, sets up that at the time the re- quest was made to enter said partial payment upon the margin of the record. the mortgage had not been fully paid or satisfied. the burden is upon the defendant to show to the reasonable satisfaction of the jury that said mort