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CIVIL CODE SECTION 2941 AS BASED UPON FORMER UNCODIFIED SECTION 40 OF CHAPTER 101, STATUTES OF 1850

Assembly Bill 76 of 1850 - AB 76

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Civil Code section 2941 can be traced back to one of the first enactments by the California Legislature after the organization of the State, Assembly Bill 76 of 1850, which was entitled "An Act concerning conveyances."  (See Exhibit A, #1)  Assembly Bill 76 was approved by the Legislature and enacted as Chapter 101 of the Statutes of 1850.  (See Exhibit A, #2)  The predecessor to present section 2941 appears to have been proposed as uncodified section 50 of Assembly Bill 76 as it was introduced.  (See Exhibit A, #1a)  The bill was then extensively revised and the predecessor to present section 2941 became uncodified section 40 of the amended version of the bill which was enacted.  (See Exhibit A, #1b, #2, and #3)

 At this time the text of uncodified section 40 provided:

 If any mortgagee, or his personal representative or assignee, as the case may be, after a full performance of the conditions of the mortgage, whether before or after breach thereof, shall, for the space of seven days after being thereto requested, and after tender of his reasonable charges, refuse or neglect to execute and acknowledge a certificate of discharge or release thereof, he shall be liable to the mortgagor, his heirs or assigns, in the sum of one hundred dollars, and also for all actual damages occasioned by such neglect or refusal.

(See Exhibit A, #2, page 253)

 

None of the legislative material that survived provides any details on the background and purpose of this enactment other than what can be derived from the language of the statute.  (See Exhibit A, #1a and #1b)  A treatise from 1898 by Theodore H. Hittell indicates that this particular act was part of the Legislature's attempts to codify what was then the existing common law of the United States on this subject.  (See Exhibit A, #4, page 800)  We have included another treatise on the law of mortgages from 1878 which will provide you with background on how the law in California compared with the law in other states.  (See Exhibit A, #5)

 

We also found that two states, Michigan and Wisconsin, had statutes in existence prior to 1850 that were similar to uncodified section 40 of Chapter 101 of 1850.  (See Exhibit B, #1 and #5)