In addition to the brief observations contained in my special concurring opinion heretofore filed, and reaffirming the views therein expressed, it is my opinion, after a careful re-examination of the record and authorities cited, that under the provisions of Sec. 44-815, I. C. A., the mortgagor, respondent here, although he had disposed of the property covered by the mortgage, had the right under the statute to bring the present action against appellant. The burden of proof was upon respondent to establish by competent and substantial evidence (1) that the mortgages had been satisfied or paid; (2) that a proper demand had been made upon the mortgagee to execute, acknowledge and deliver certificates of discharge or satisfaction of said mortgages so as to entitle them to be recorded, or to otherwise discharge the mortgages as by the statute provided; and (3) that appellant had refused to comply with the provisions of the statute as above enumerated.
If appellant upon proper demand refused to release the mortgages in the manner provided by sec. 44-815, supra, under the facts and circumstances of this case, appellant became liable to respondent for all damages, if any, sustained by respondent as a result of such refusal, and also for the statutory penalty. *Page 585
The purpose of the statute is plain. It mandatorily provides that the mortgagee or his assignee must immediately, on payment of the mortgage debt and upon proper demand, enter satisfaction or cause satisfaction of the mortgage to be entered of record in order that the records disclose that the lien created by the mortgage had been satisfied and the mortgage discharged of record. To construe the statute otherwise than as above indicated might seriously impair the credit of the mortgagor, and thus as alleged in the instant case result in damage to the mortgagor.
While the sufficiency of the demand for the release of the mortgages was somewhat indefinite and uncertain as to which particular mortgages respondent claimed had been satisfied, I am not constrained to hold the failure on the part of respondent to have more definitely and with greater certainty designated the particular mortgages not released as being fatal to his cause of action. It was the imperative duty of the appellant to release the mortgages on proper demand immediately following payment, or within a reasonable time thereafter.
I have advisedly refrained from citing authorities to support my conclusions, my associates having discussed the authorities which are in conflict.
In the state of the record, I am satisfied that the ends of justice will be served by the granting of a new trial upon all the issues raised by the pleadings.