Pincus v. U. S. Dyeing & Cleaning Works

• Decision Date: 20 April 1926
• Citation: 133 A. 66
• Parties: PINCUS v. U. S. DYEING & CLEANING WORKS.
• Court: New Jersey Court of Chancery

133 A. 66

PINCUS

v. U. S. DYEING & CLEANING WORKS.

Court of Chancery of New Jersey.

April 20, 1926.

Application by Tetta Pincus to set aside a chattel mortgage made by the U. S. Dyeing & Cleaning Works. Mortgage set aside.

Whiting & Moore, of Newark, for Ideal Filter Co.

Israel B. Greene and Jerome Alper, both of Newark, for receiver.

CHURCH, V. C. This is an application by a receiver to set aside a chattel mortgage, made by the insolvent corporation, dated and delivered February 19, 1925, and recorded March 6, 1925. The first point of attack is that the statutory affidavit annexed to the mortgage is not made by the mortgagee, his agent or attorney, within the meaning of the Chattel Mortgage Act of this state.

The affidavit reads as follows:

"State of Missouri, City of St. Louis:

"Ideal Filter Co., the mortgagee in the foregoing mortgage named being duly sworn on oath say that the true consideration of said mortgage is as follows, viz.:

1 Model R Ideal duplex

$508 00

2 500-gal. and 1 336-gal. underground tanks

459 00

Total

$967 00

"And deponent further says that there is due on said mortgage the sum of $710, besides lawful interest thereon from the 15th day of February, 1924.

"Ideal Filter Co.,

"By Ethel M. Long, Sec'y. "Sworn and subscribed this 4th day of March, A. D. 1925, before me at St. Louis, Mo. "[Seal.] Roy C. Godfrey, Notary Public. "My commission expires October 16, 1928."

The fourth section of the Chattel Mortgage Act (Compiled Statutes, p. 464) requires that the affidavit of the mortgagee be "made and subscribed to by the holder of said mortgage, his agent, or attorney."

The affidavit recites that the mortgagee, a corporation, swore to its contents. It is apparent that a corporate entity itself cannot make such an affidavit. The words, "by Ethel M. Long, Sec'y," are added. A secretary of a corporation is not by virtue of his office an agent for the purpose of making such an affidavit. Iron Co. v. Boyce, 58 A. 1094, 71 N. J. Law, 434.

It does not appear in the body of the affidavit that Ethel M. Long was secretary or agent of the corporation. It does not appear that she was sworn as to the truth of the contents.

In the case of Watson v. Rowley, 52 A. 160, 63 N. J. Eq. 195, it was held:

"Under the Chattel Mortgage Act declaring chattel mortgages, where the mortgagor retains possession of the property, absolutely void, unless accompanied by an affidavit by the holder of the mortgage or his agent stating the true consideration for the mortgage it must appear in the affidavit that the affiant is the holder of the mortgage or his agent or attorney."

My attention has been called to the cases of American Soda Fountain Co. v. Stolzenbach, 68 A. 1078, 75 N. J. Law, 721, 16 L. R. A. (N. S.) 703, 127 Am. St. Rep. 822, and Lessler v. Paterson National Bank (N. J. Ch.) 128 A. 800, by counsel for the defendant.

In the American Soda Fountain Case the affidavit was made by the vice president, and his official position appeare'd in the body of the affidavit. In the Lessler Case the affidavit was made by the president. These cases differ from the case at bar, in that they distinguish between the acts of a corporation through an agent and those of an executive officer. Acts of a president or vice president of a mortgagee corporation are in legal contemplation the acts of the corporation. Those of a secretary or agent may or may not be. This affidavit is therefore defective.

The second point is that the mortgage was not properly acknowledged or proved. The form of the acknowledgment or proof under discussion is as follows:

"State of New Jersey, County of Essex—ss.: "Be it remembered that on the 19th day of February, A. D. 1925, before the undersigned, a notary public, within and for the county and state aforesaid, personally came Heyman Helman, secretary of the U. S. Dyeing & Cleaning Works who is personally known to me to be the same person whose name subscribed to the foregoing chattel mortgage as a party thereto, and acknowledged the same to be, the act and deed for the uses and purposes therein mentioned and that Joseph Koppleon signed same as president of the corporation by order of the board of directors.

"In testimony whereof, I have hereunto subscribed my name and affixed my official seal at my office in Irvington, in said county and state, the day and year aforesaid.

"John I. Middleton,

"Notary Public of New Jersey."

Both the president and secretary signed. In Hopper v. Lovejoy, 21 A. 298, 47 N. J. Eq. 573, 12 L. R. A. 588, the court said:

"With regard to corporate deeds he (the acknowledging officer) must therefore be satisfied that such person is in the eye of the law the grantor mentioned in it—that is authorized to represent the corporation in executing and acknowledging the conveyance."

It appears that the president signed "by order of the board of directors." He did not acknowledge. If there was any acknowledgment at all, it was by the...