— The action in which the appellees, as mortgagors, were plaintiffs, was brought against the appellant as morgagee, to recover the penalty of two hundred dollars which is imposed by the statute, (Code, § 1869), upon a mortgagee who fails for three months after the request in writing of the mortgagor, to enter satisfaction upon the margin of the record of the mortgage, the mortgage debt having been paid.
The defendant filed several pleas, to two of which, the third and sixth, demurrers were sustained.
The third plea is a mere denial of the refusal of the defendant to enter the satisfaction. The complaint does *372not count upon his refusal to enter the satisfaction, but upon his failure. The refusal involves more than the failure — the one is positive — the other may be negligent or inadvertent, and as was said in Renfro v. Adams, 62 Ala. 302 : ‘‘The failure of the mortgagee, whether willful, intentional or inadvertent, subjects him to liability for the penalty. It is against his negligence or inadvertence, as well as his willful willfulness, the statute intends to protect the mortgagor, or the party aggrieved.”
Giving to the sixth plea, the most favorable construction for the pleader, of which it admits, and the question it presents, is whether the physical inability of the mortgagee, rendering him incapable of going to the place of the record of the mortgage and making the entry of satisfaction for the period of more than three months after receiving the notice or request, and the making of the entry so soon as he was able to travel, relieves from liability to the penalty. If the physical inability had been averred to have been of a character or degree incapacitating the defendant for the transaction of business, or if it had been attended by mental inability, a different question would be presented. But this is not the character or degree of the inability averred. It is mere physical inability to travel, leaving the ability to transact business not requiring travel, and mental ability unimpaired. The appointment of an agent to enter the satisfaction of the mortgage could have been made, and the entry by him would have relieved the defendant from liability, satisfying the request of the plaintiffs. It is true, that after the demurrers were sustained, and pending the trial, the defendant proposed to file a plea averring his paralytic condition, and his consequent physical and mental incapacity for the transaction of business, which, if proved, would have been a complete defense to the action. The filing of the plea was matter of discretion in the court below, and the exercise of the discretion is notrevisable on error. — 3 Brick. Dig. 705, § 86.
There are several assignments of error, but the argument of counsel is directed exclusively to such as we have considered, and we regard the others as waived. Let the judgment be affirmed.