Fletcher v. Bonnet

The opinion of the court was delivered by Dixon, J. The first ground for attacking this mortgage is that the affidavit annexed to it was not made by the proper person, and the vice-chancellor so decided. [618] This decision was erroneous. The affiant was the legal mortgagee, to whom the mortgage was delivered, and who held it and had the lawful right to hold it. Consequently he was “ the holder,” and as such was, by the plain language of the statute, authorized to make the requisite affidavit. That he may not have had personal knowledge of the truth of the matters stated in his affidavit is not reason enough for distorting this explicit provision. The law requires that the statement shall be true, not that the affiant shall know it to be true. Had the statute not indicated the person who was to make the affidavit, then it might well have been assumed that it was to be made by one cognizant of the facts; but here the person or class of persons is designated, without reference to their knowledge. It may often happen that no person within the class is directly cognizant of “the consideration of the mortgage and the amount due and to grow due thereon,” as in the case of an assignee of a pre-existing debt, or an executor or administrator taking security for a debt due the decedent, yet certainly such a person may become “the holder” of a chattel mortgage, and must be competent to make the statutory affidavit. His conscience is charged to the extent of his information; the validity of the instrument depends on the correctness of that information. The second objection to the mortgage is that the affidavit does not state “ as nearly as possible the amount due and to grow due ” on the mortgage. The affidavit expressly refers to matters stated in the mortgage, and therefore these matters must be regarded as part of the affidavit. Gardiner v. Parmalee, 31 Ohio St. 551; Gilbert v. Vail, 60 Vt. 261; Tompkins v. Crosby, 19 Atl. Rep. 720. So read, the affidavit distinctly indicates the times when designated ’ sums will grow due, and that nothing was due at the date of the mortgage. It is further objected to the claims of the appellants that no proof was made in the cause that the mortgage really represented actual indebtedness. The bill of complaint alleged that there was no such indebtedness, and called on the defendants, the trustee and cestuis que [619] trust in the mortgage, to answer without oath; the appellants answered that the notes, mentioned in the mortgage as theirs, did represent so much money actually loaned by them respectively to the corporation. No testimony on the point was offered by either side, except that the defendants put the mortgage in evidence and it was received without objection. Assuming that the burden of proof with regard to the nonexistence of the debts did not rest upon the complainants, still we think the debts were proved. The recitals in the mortgage were evidence against the corporation and its subsequent creditors. Webb v. Mann, 3 Mich. 139; State Bank v. Chetwood, 3 Halst. 1; Brovm v. Kahnweiler, 1 Stew. Eq. 311; Rev. p. 387 pl. 52. But the force of such evidence against creditors would, at common law, have been overcome by the fact that possession of the chattels remained with the mortgagor, that circumstance being, at common law and in favor of creditors, prima facie evidence of fraud (Miller ads. Pancoast, 5 Dutch. 250), which could not be rebutted without further proof than the mortgage itself afforded of a valuable consideration. But now, under the statute above quoted, chattel mortgages, when recorded pursuant to the provisions of the act, become valid against the creditors of the mortgagor, notwithstanding his retention of possession. In the validity thus established is included the evidential efficacy of all recitals in the instrument with regard to facts that go to constitute the mortgage, among them the indebtedness to be secured. The mortgage now in question having been duly executed, attested and recorded, sufficiently proved the debts due to the appellants. The decree below, postponing the lien for these debts to the claims of the complainants, should be reversed. For reversal — Abbett, Deptje, Dixon, Gabbison, Lippjncott, Reed, Van Syckel, Bogebt, Kbtjegeb, Phelps, Smith — 11. For affirmance — None.