Opinion
01-30-1901
W. & B. DOUGLASS et al. v. WILLIAMS et al.
L. Newcomb and J. J. Crandall, for complainants. H. S. Alvord, for defendants.
(Syllabus by the Court.)
Bill by W. & B. Douglass, incorporated, and others against Ellen P. Williams and others. Dismissed,
L. Newcomb and J. J. Crandall, for complainants.
H. S. Alvord, for defendants.
GREY, V. C. The complainants hold judgments against the defendants Herbert J. Mason and Rachel L. Mason, which were entered in April, 1897. The defendant Ellen F. Williams holds a chattel mortgage made to her by Herbert J. and Rachel Mason, partners, etc., dated February 4, 1897, recorded in Cumberland county clerk's office, February 8, 1897, to secure the payment of $1,000; to which is appended this deposition, as the affidavit required by the statute: "State of New Jersey, County of Essex: Ellen F. Williams, the mortgagee in the foregoing mortgage named, being duly sworn, on her oath says that the consideration of the said mortgage is as follows, viz.: Five hundred dollars loaned to the party of the first part, and security for the payment of a certain note for five hundred dollars, and the renewal of the same, signed by the party of the first part, and indorsed by her; said note having been discounted at the Tradesman's Bank of Vineland, N. J. The deponent further says that there is due on the said mortgage the sum of five hundred dollars in cash and the contingent liability on the note mentioned above, besides lawful interest from the 5th day of February, 1897. Words 'payment of,' inserted before signing. Ellen F. Williams. Sworn and subscribed this fifth day of February, A. D. 1897, before me, Chas. B. Duncan. [Notarial Seal.]"
This chattel mortgage is attacked by the creditors of the mortgagors upon the ground —First, that the affidavit does not comply with the requirements of the statute in stating the consideration of the mortgage (2 Gen. St. p. 2113, § 52); second, that the chattel mortgage was made and recorded in bad faith, and under such circumstances as to be void as a hindrance and prevention to creditors of the mortgagor.
The first objection to the affidavit is to that part which states that the consideration is
"five hundred dollars loaned to the party of the first part." It is contended that in order to state the true consideration as required by the statute, the affidavit must show, not only that there was a loan and to whom it was made, but also by whom it was made. The statute simply requires that the affidavit of the holder of the mortgage shall state its consideration, without prescribing that the special incidents and the names of the actors shall be specified. The rule has been recognized in this state in construing affidavits annexed to chattel mortgages, where the affidavit itself refers to the chattel mortgage to which it is annexed, that the chattel mortgage and the affidavit must be read together. Fletcher v. Bonnet 51 N. J. Eq. 615, 28 Atl. 601. Reading the affidavit and chattel mortgage together, it appears that Ellen F. Williams, the mortgagee "in the foregoing mortgage named," takes the oath of the consideration "of the said mortgage," and on the face of the chattel mortgage there is clear indication of the person to whom the mortgage money is owing. The creditors of the mortgagor are fairly notified of the whole transaction when they are told that the consideration was $500 loaned to the mortgagor to secure payment of a note of the mortgagor discounted by a named bank. As a basis for further inquiries to test the bona fides of the transaction, this is a sufficient disclosure of the consideration. It is also fairly inferable from the statements made in the affidavit, taken in connection with these facts appearing on the face of the mortgage, that the $500 loan named as the consideration of the mortgage was loaned to the mortgagor by Mrs. Williams, the mortgagee. But, in order to make the consideration good, the money might have been loaned just as efficiently by any one else. A. may loan to B., who may, with A.'s consent, in consideration thereof, execute a mortgage to C. Upon the whole showing, the affidavit cannot be held to be Insufficient.
The charges in the bill and amended bill alleging the fraudulent procurement and use of the chattel mortgage and judgments of the defendants are quite Insufficiently supported by the evidence submitted on the part of the complainants which attempts to show the alleged frauds. No decree could be given on such proof. On the contrary, the defendants' evidence that they were taken, recorded, and entered by them in good faith, and without any fraudulent intent or purpose, is of greater weight. The bill should be dismissed, with costs.