On February 15, 1893, the appellee, Mary Mitchell, purchased of appellant, Thomason Grocery Company, goods'to the amount of $152.05, and she and her husband and co-appellee, M. T. Mitchell, to secure $150 thereof, executed to the seller their joint note, for that sum, payable November 14, 1893. This note was a part of, and embodied in, a mortgage then executed by the Mitchells jointly, to secure the same, upon real and personal property which the instrument recited belonged to both mortgagors, though, in fact, it belonged to said Mary, who was the wife of said M. T. Mitchell. The mortgage was duly recorded in Shelby county. There was a provision that the mortgage should also secure any further indebtedness contracted during the year. This action is by the mortgagors, jointly, to recover the statutory penalty of an alleged failure, on the part of the mortgagee, to enter satisfaction of the mortgage, on the record ; and it is insisted by the defendant that the action is maintainable only by Mrs. Mitchell, who was principal debtor and owner of the property. This contention is not sound. Both plaintiffs were mortgagors, as joint debtors and owners of the property, and both bound by statutory covenant of warranty contained in the instrument, and it is not open to the mortgagee, in an action of this character, to dispute the interest of both in the satisfaction of the mortgage, and their statutory right to sue for the penalty. The statute regulating the separate estates of married women has no effect upon this question.
The note and mortgage, properly construed, show that the secured debt did not bear interest before maturity, and this result cannot be controlled by any evidence of the custom of the mortgagee to charge interest in such cases. That part of the instrument expressing the promise to pay is a formal promissory note containing no stipulation for the payment of interest. The premises of the mortgage recite that the mortgage is given to secure the payment of the “aforesaid obligation according to the tenor and effect thereof.” The defeasance clause (which from a number of indications upon the face of the mortgage, was evidently executed after a form) states : “If we pay said debt and interest, with the *322cost of the execution of this trust, including recording fees, on or before the same falls due, then this conveyance is null and void. But if we make default in the payment of. said debt, failing to pay same when it becomes due, or such other- debt or ' debts as may become due and payable under the provisions of this conveyance, hereinafter mentioned, then,” &c., following with power of sale. It is observable there is, in this defeasance, as much .an implied stipulation for the payment of the cost of executing the trust, as for the payment of interest, and the form of the clause requires the payment of both, as well as the debt, on or before the same falls due ; default in which gives rise to the right to execute the trust. The incongruity thus presented manifests the use of an unskillfully drawn form, and accounts for the insertion of the words “and interest”, when that part of the contract evidencing the obligation to pay and the security given show that interest was not payable before maturity. It was evidently the purpose -to secure by the mortgage the debt that was or might be really incurred and which would be recoverable in a personal action, including recording fees, and nothing more.
It was undisputed that the entire mortgage debt and recording fee (eliminating the question of interest) had been paid prior to the giving of the notice to enter satisfaction, except there was controversy and conflict in the evidence, as to the payment of the excess of $2.05 in the amount of the bill of goods purchased, over the amount specified in the note and mortgage; and this was the only material issue between the parties, except the material allegation that defendant had failed to enter satisfaction of the mortgage as required.
All the charges requested by the defendant, except 1, 3 and 6, relate to immaterial matters, and were properly refused. The third unduly limits the instruction as to time of payment, and improperly requires the remittance to have been accompanied by express instructions for its application to the debt. The circumstances might have been such as, in the judgment of the jury, rendered special instructions as to application of the money unnecessary. The sixth is argumentative.
The burden was upon the plaintiffs to prove the failure of the defendant to enter the satisfaction upon the *323record. The bill of exceptions purports to set out all the evidence, and is silent on this subject. The statement that, “The margins of said record shows the following credits, viz.: Nov. 15, 1893, $119.59, and Jan. 16, 1894, $20”, does not show, or tend to show, that satisfaction was not also entered on said margin. By-reason of this omission, the-general charge requested by the defendant should have been given, and the court erred in refusing it. The charge given at the request of the plaintiff was erroneous for the same reason.
The objection made to the notice to enter satisfaction, that it “did not comply with the statute”., was too general; and the further objection that it was signed by both Mary and M. T. Mitchell was untenable.
The demurrers to the plea in abatement which were sustained by the court, are not set out in the record, and the assignment as error of the court’s ruling upon them is not insisted upon in the appellant’s argument. We will, therefore, not consider that assignment.
Reversed and remanded.