Opinion
05-08-1890
TOMPKINS v. CROSBY et al.
E. Q. Keasbey, for complainant. J. W. Taylor, for Whitney Glass Co. Mr. Bradner, for Cadmus.
(Syllabus by the Court.)
Bill to foreclose chattel mortgage.
E. Q. Keasbey, for complainant. J. W. Taylor, for Whitney Glass Co. Mr. Bradner, for Cadmus.
PITNEY, V. C. This is a contest over the proceeds of the sale of certain chattels. Complainant claims by virtue of a chattel mortgage dated and recorded November 22, 1888. The defendants claim by judgments, levies, and executions subsequent in date to complainant's mortgage, and base their right to priority over complainant by reason of the alleged insufficiency of the affidavit annexed to his mortgage. The fourth section of the act of May 2, 1885, (P. L. 1885, p. 319,) provides that a chattel mortgage which shall not have "annexed thereto an affidavit or affirmation made and subscribed by the holder or holders of said mortgage, * * * stating the consideration of said mortgage and, as nearly as possible, the amount due and to grow due thereon," etc., shall be void as against creditors. The complainant's mortgage contains this clause: "Upon condition that if they, the said party of the first part, shall and do well and truly pay unto the said party of the second part, his executors, administrators, and assigns, at maturity, two certain promissory notes, of even date herewith, made by the said party of the first part,—one for the sum of fifteen hundred dollars, payable to the order of the said Samuel E. Tompkins six months after date, and indorsed by the said Samuel E. Tompkins; and the other for the sum of fifteen hundred dollars, payable to the order of the said Samuel E. Tompkins nine months after date, and indorsed by the said Samuel E. Tompkins and$$$
Andrew Albright,—or any renewal or renewals of the said notes, and shall indemnify and save harmless the said party of the second part from all costs, charges, and expenses therefrom arising, and from any liability by reason of the indorsement of said notes, then these presents shall be void." And the affidavit is in these words: "State of New Jersey, county of Essex—as.: Samuel E. Tompkins, the mortgagee in the foregoing mortgage named, being duly sworn, on his oath says that the true consideration of said mortgage is as follows, viz.: The amount of said promissory notes indorsed by the said Samuel E. Tompkins and Andrew Albright for the accommodation of the said parties of the first part, and discounted by the bank for their benefit; the proceeds having been lent and advanced to them on the security of those notes and this mortgage. The deponent further says that there is due on said mortgage the sum of three thousand dollars. SAML. E. TOMPKINS."
It seems to me more than doubtful whether this affidavit, standing by itself, is sufficient. It does not appear to state the consideration with sufficient precision. The object of the affidavit, as is well settled, is twofold: First, to purge the affiant's conscience; and, second, to give creditors such information as will enable them to investigate and ascertain the actual consideration. This affidavit, read without reference to the mortgage itself, is deficient in both particulars, but, if it be read in connection with the clause in the mortgage above set forth, it seems to me that the objection entirely vanishes. By that it appears that the mortgage was made to secure the complainant against his indorsement upon two promissory notes of the date and amount therein stated. That such a mortgage is valid is beyond question. It is true that until the mortgagee has paid the money or some of it secured by the notes it cannot be said with strict accuracy that anything is due to him on the mortgage, and so the statutory requisite of stating the amount due cannot be fulfilled with strict accuracy. But in a qualified sense the whole sum of $3,000 mentioned in this case was due to the bank which advanced the money on the notes, since upon dishonor of the notes and notice to the mortgagee as indorser the bank would be entitled to resort to this mortgage given as security to him, upon the principle that in such case the mortgagee is a trustee for the actual creditor. Brandt, Sur. § 282, and cases. The only question, then, is whether the affidavit and mortgage may be read together. I think they may, and that the mortgage is good. Gilbert v. Vail, 60 Vt. 261, 14 Atl. Rep. 542; Beers v. Waterbury, 8 Bosw. 396. The evidence shows that the complainant was obliged to pay and actually paid the whole amount of the money secured by the promissory notes mentioned in the mortgage. Decree accordingly.