Shupe v. Taggart

• Decision Date: 15 May 1919
• Citation: 107 A. 50
• Parties: SHUPE v. TAGGART.
• Court: New Jersey Supreme Court

107 A. 50

SHUPE

v. TAGGART.

Supreme Court of New Jersey.

May 15, 1919.

Syllabus by the Court.

Appeal from District Court of Newark.

Action for conversion by William F. Shupe against Donald C. Taggart. Judgment for plaintiff, and defendant appeals. Reversed.

Argued February term, 1919, before BERGEN, KALISCH, and BLACK, JJ.

Lloyd Thompson, of Westfield, for appellant.

Stein, Stein & Hannock, of Newark, for respondent.

BLACK, J. The fundamental question involved in this case is the sufficiency of the affidavit to a chattel mortgage under the statute. The contest is between a judgment creditor, having made a levy and sale under an execution and title or right to possession under a chattel mortgage. The case was tried by the court, resulting in a judgment in favor of the plaintiff for $500, in an action of conversion. The trial court held that the affidavit to the chattel mortgage was insufficient under the statute. The case therefore turns upon the validity of the chattel mortgage, the sufficiency of the affidavit. The mortgage is dated April 13, 1918. This is the affidavit:

"Donald C. Taggart, 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.: Money loaned to the said Frederick S. Taggart on November 1, 1916, evidenced by a certain promissory note made by him to me, dated November 1, 1916, and due in one year, with interest at 6 per cent. per annum, interest on which has been paid to May 1, 1917, and deponent further says that there is due on said mortgage the sum of $3,000 besides lawful interest thereon from the 1st day of May, 1918."

The mortgage recites that it is a security for "the sum of three thousand dollars, together with lawful interest thereon from the first day of May, nineteen hundred and seventeen, as evidenced by a certain promissory note made by me to the said Donald C. Taggart for three thousand dollars ($3,000) and dated November 1, 1916, and the accrued interest." Thus the recitals in the body of the mortgage and the affidavit identify and describe the same debt and the same person to whom the debt is due, and state the debt was contracted by a loan of money. They should be read together.

The statute provides (1 Com. St. N. J. p. 463, par. 4; P. L. 1902, p. 487, par. 4) that the mortgage should have annexed thereto an affidavit "stating the consideration of said mortgage and as nearly as possible the amount due and to grow due thereon."

The trial court, as stated, held the affidavit insufficient, and gave judgment for the plaintiff, i. e., in favor of the judgment creditor, on the ground that the affidavit does not state how the debt was created, or on what the consideration is founded, the body of the mortgage does not supply any further information in this regard, citing as authority the case of Dunham v. Cramer, 63 N. J. Eq. 151, 51 Atl. 1011. That case is not in point. Here the affidavit shows how the debt was created, viz., money loaned, and who made the promissory note. Both of these important facts were absent in the case above cited by the court for its decision.

We think the trial court was in error. The affidavit and the recitals in the body of the mortgage should be read together to ascertain whether there is a sufficient compliance with the terms of the statute. Fletcher v. Bonnet, 51 N. J. Eq. 615, 28 Atl. 601; Black v. Pidgeon, 70 N. J. Law, 806, 58 Atl. 372. The affidavit in this case in some of the essential facts is not unlike the affidavit in the case of Black v. Pidgeon, 70 N. J. Law, 802, 806, 58 Atl. 372. The affidavit in that case was held by the court of Errors and Appeals to be in compliance with the terms of the statute. All the cases hold that the affidavit must on its face, or read in connection with the recitals in the mortgage to which it is annexed, show how the relation of creditor and debtor arose between the mortgagor and mortgagee, not merely what evidence has been given of the debt, but what is the price of the debt, the cause of the indebtedness, how the debt came into existence; thus, if a loan of money, a sale of goods or lands, etc. Ehler v. Turner, 35 N. J. Eq. 68, 70; Collerd v. Tully, 77 N. J. Eq. 447, 77 Atl. 1079.

In the absence of fraud, where there is an honest and substantial compliance with the statute, the mortgage will not be open to attack of other creditors, merely because the affidavit is inartificially drawn. Simpson v. Anderson, 75 N. J. Eq. 581, 585, 73 Atl. 493; American Soda Fountain Co. v. Stolzenbach, 75 N. J. Law, 721, 68 Atl. 1078, 16 L. R. A. (N. S.) 703, 127 Am. St. Rep. 822....