SIMPSON, J., and the writer, dissent on this proposition, and are of the opinion that the bill of exceptions in this case has, by virtue of express provisions of our statutes (Code, §§ 3018, 3019) become a part of the record, and is for that reason entitled to all the presumptions of verity and conclusiveness that attach to any other part of the record; and that it cannot be contradicted by parol proof, and certainly not by exparte affidavits. They think that the evils to flow from such a practice will prove the unwisdom of such a precedent. They are of the opinion that if the appellee can thus contradict this part of the record — can show by exparte affidavits that the bill certified is not a bill of exceptions, and therefore not a part of the record — he might, upon the same reasoning, show that the judgment entry has the wrong date, that it was actually taken during vacation, and not in term time, and is therefore no judgment.
The bill of exceptions being stricken, we can consider only the asignments of error based upon the record proper. These go to the trial court's overruling the *Page 256 appellant's demurrers to the several counts of the complaint.
The action was to recover the statutory penalty for failure to mark the records of several mortgages "satisfied," as is provided by section 4898 of the Code.
The complaint contained 14 counts. The even-numbered counts were all eliminated and need not be considered. The demurrers were, however, overruled as to the odd-numbered counts, and those rulings are assigned as error. The several counts are substantially alike, and hence the ruling as to any one of them, by the trial court, practically raises the same question of law as to all. Hence we will follow the course pursued by the appellant in his brief, and consider only those which raise all the questions, involved on the appeal, as to the record proper.
We cannot agree with appellant that these counts, or any one of them, were subject to the demurrer interposed, and we are of the opinion that the trial court properly overruled the demurrer thereto. Each count practically followed the language of the statute, and alleged the existence of all the facts which the statute makes necessary to incur the penalty.
There is nothing in the objection that the mortgage in question was to the firm or partnership, and that the notice to satisfy was given to the surviving partner instead of to the firm. The notice, of course, should be served on some person, and the surviving partner was certainly a proper person upon whom to serve the notice, if he was not the only person upon whom the notice could be properly served.
The counts did sufficiently allege that the mortgage had been "paid or satisfied," and that the appellant was the mortgagee, transferee, or assignee of the mortgage, and that he had received payment or satisfaction *Page 257 thereof, and that he failed to satisfy the same of record for two months after notice in writing so to do from the mortgagor.
No one of the grounds of demurrer to these odd-numbered counts was well taken and the court properly overruled the demurrer to each.
The mortgage in question having been executed to a partnership composed of two members, one of whom afterwards died, the surviving partner (appellant here) was the proper person upon whom notice to satisfy should be served, and upon whom the law imposed the duty to satisfy, if the mortgage had in fact been paid and satisfied before the notice was given.
The rule declared in the case of Renfro v. Adams, 62 Ala. 302, 305, is applicable to, and conclusive in this case. It is there said: "Several objections to the complaint are made by demurrer, which we do not think are well taken. The facts necessary to support the action are presented in an intelligible form and with clearness. The material questions seem to be whether notice or a request to each of mortgagees, who were partners, to enter satisfaction of the mortgage, was necessary to render them jointly liable for the penalty; and whether the failure to enter satisfaction must not have been willful and intentional, before the penalty is incurred. These questions must be answered negatively. The general rule resulting from the unity of a partnership is that, when notice or a request is necessary to fix its liability, it may be given to the one, and is notice or request to all the partners. — New York Alabama Con. Co. v. Selma Savings Bank, 51 Ala. 305, 23 Am. Rep. 552. The failure of the mortgagee, whether willful, intentional, or merely negligent or in advertent, subjects him to liability for the penalty. It is against his negligence or inadvertence, as well as his *Page 258 willfulness, the statute intends to protect the mortgagor, or the party aggrieved."
Finding no error in the record proper, the judgment appealed from must be affirmed.
Affirmed. All the Justices concur, save DOWDELL, C. J., not sitting.
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