Kauffman v. Utility Trucking Co.

The opinion of the court was delivered by Bodine, J. The appeal is from an order entered in the court of chancery holding a chattel mortgage invalid as against creditors. The mortgage dated March 7th, 1935, was recorded the next day but not until the day following was a check for the consideration, dated March 9th, 1935, delivered. The affidavit of consideration, required by law, stated that a certain sum *577 of money corresponding to the amount of the check, later delivered, was paid on the date of the delivery of the mortgage. This was not so, since no consideration was then paid. The court of chancery reached its conclusion in reliance upon Tingley v. International Dynelectron Co. et al., 74 N. J. Eq. 538; affirmed, 76 N. J. Eq. 337; Stanber v. Sims Magneto Co., 98 N. J. Eq. 38; affirmed, 132 Atl. Rep. 922. Appellant argues that the rule laid down in American Soda Fountain Co. v. Stolzenbach, 75 N. J. Law 721, and thereafter followed in a number of chancery decisions, is controlling. Those decisions hold that in the absence of fraud an honest and substantial statement of the consideration is a compliance with the statute. At the time the mortgage was executed no .money had been advanced and no indebtedness for cash loans existed. It is apparent that the statement in the affidavit was untrue, and the mere circumstance that the mortgagee intended to make the advances and give the borrower credit does not alter the fact that on the date of the mortgage no moneys whatever had been paid. There was, therefore, no compliance with the statutory requirements, since there had been no money that day paid. The order appealed from is affirmed. For affirmance — The Chief-Justice, Trenchard, Parker, Lloyd, Case, Bodine, Hei-ier, Perskie, Hetfield, Dear, Wells, WolfsKeil, Rafferty, Cole, JJ. 14. For reversal — None.