Simpson v. Anderson

• Citation: 73 A. 493,75 N.J.E. 581
• Parties: SIMPSON v. ANDERSON.
• Decision Date: 14 June 1909
• Court: United States State Supreme Court (New Jersey)

73 A. 493

75 N.J.E. 581

SIMPSON

v. ANDERSON.

Court of Errors and Appeals of New Jersey.

June 14, 1909.

(Syllabus by the Court.)

Appeal from Court of Chancery.

Bill by the ordinary on behalf of Mabel L. Simpson against Abijah A. Anderson. Decree for complainant (70 Atl. 696), and defendant appeals. Reversed.

John Sykes, for appellant.

John S. Van Dike, for respondent.

BERGEN, J. The complainant, a judgment creditor of Josiah B. Flock, filed his bill of complaint, praying that a chattel mortgage given by Flock to the defendant be decreed void as to the judgment of the complainant. The learned Vice Chancellor adjudged that the mortgage was void as to complainant's judgment for want of a sufficient affidavit, and advised an order for injunction restraining the defendant from selling the mortgaged chattels, from which defendant appeals.

The mortgage bears date August 28, 1897, conditioned for the payment of $1,925, being the aggregate amount of certain items particularly set out in the mortgage as follows, viz.: A bond dated March 23, 1892, executed and delivered by Flock to one Richard H. Hendrickson, for the sum of $1,500 and interest, the payment of which was secured by a mortgage given by Flock and wife to Hendrickson and assigned by Hendrickson to the defendant, the mortgage and assignment being duly recorded; also, the sum of $344 loaned by the defendant to Flock in cash, and the amount due on three certain promissory notes "upon which the said Abijah A. Anderson has become an accommodation indorser and surety for the said Josiah B. Flock." Then follows the dates and the amounts of the respective notes, two of them being payable three months after date, and the other two months after date. The record shows that the liability as indorser had been discharged, the cash loaned repaid, and the mortgage foreclosed and mortgaged premises sold, and the proceeds of such sale applied towards the payment of the mortgage, leaving a deficiency of $976.07, which sum was all that remained unpaid of the debts secured by the chattel mortgage when the bill was filed in this cause. The affidavit which the learned Vice Chancellor held to be insufficient sets out, so far as it is necessary to be here recited, "that the consideration of said mortgage is: Whereas, the said Josiah B. Flock became indebted to one Richard H. Hendrickson in the sum of fifteen hundred dollars; * * * and whereas, the said Richard H. Hendrickson, for the consideration of fifteen hundred dollars, assigned, transferred and set over the said mortgage to Abijah A. Anderson; * * * and whereas, the said Josiah B. Flock is indebted to this deponent for the full amount of the said fifteen hundred dollars; * * * and whereas, on the thirtieth day of March, eighteen hundred and ninety-four, this deponent loaned and advanced in cash the sum of three hundred an forty-four dollars to the said Josiah B. Flock, at his special instance and request, and that the whole amount of the said three hundred and forty-four dollars, with interest thereon from the first day of April, eighteen hundred and ninety-seven, is still due and owing; * * * and whereas, this deponent has, at the special instance and request of the said Josiah B. Flock, become an accommodation indorser and surety upon three certain promissory notes, one of which bears date the twenty-second day of June, eighteen hundred and ninety-seven; * * * and now the...