31 N.H. 92 | Superior Court of New Hampshire | 1855
The instructions of the court below seem to us correct. By the express provisions of the Revised Statutes, “ No mortgage [of personal property] shall be valid against any person except the mortgager, his executors and administrators, unless possession is delivered, or the mortgage is sworn to and recorded in the manner herein prescribed.” Rev. Stat. ch. 132, § 7; Comp. Stat. 294. By section 3 of the same chapter, the form of the oath, in case of a debt, is prescribed, and by-section 4 it is provided that “if such mortgage is given to indemnify the mortgagee against any liability assumed, or to secure the fulfilment of any agreement other than for the payment of a debt due from the mortgager to the mortgagee, such liability or agreement shall be stated, truly and specifically, in the condition of the mortgage, and the affidavit shall be so varied as to
The principle of these enactments was first clearly stated by the judge, and was then applied to the case in hand, which was that of the acceptance of orders, drawn by the mortgager upon the mortgagee, by stating that by those acceptances, if according to the understanding of the parties, they were absolute and to be paid by the mortgagee at all events, a debt was contracted by the mortgager to the acceptor for the amount for which the notes and mortgage might be properly given, and the mortgage was in fact what it appeared to be on its face, a security for a debt, and the condition and affidavit were in proper form. But if, in fact, the acceptances were understood by the parties as merely securities, given by the mortgagee for the debts of the mortgager, which the latter was himself to pay, though the notes might be available as indemnity notes, the mortgage would be void, because the statute requires that the true character of the claim secured, either as an absolute debt or a mere contingent liability, or special agreement, should be truly-stated in the mortgage. If it is not given for a debt, but some other agreement, it must not be stated as a debt.
We do not learn from the plaintiffs’ argument what is the precise point in which the instruction is supposed to be objectionable. The question relative to the validity of the mortgage is essentially distinct from any such question relating to the notes, though the counsel seem to have a different impression, as they say “ Of course, if the notes are valid the mortgage is valid.” On general principles, this would undoubtedly be so, and it has been often held that a mortgage of real estate, given in terms to secure the payment of promissory notes, would be a valid security, though it appeared that the notes were themselves given as collateral security, or as an indemnity, or on some other special agreement of a contingent kind. No statute regulates the manner of making such mortgages, except our statute which
It can make no difference if these notes were, at the date of the mortgage, merely an indemnity, that the notes have subsequently, by the payment of the acceptances, become due absolutely, and, consequently, debts. By the express provision of the statute, the true character of the liability, as it then existed, must be stated in the condition and verified by oath, or the mortgage cannot be valid against creditors.
Neither does it make any difference that the claim secured by the mortgage is, in part, well described as a debt, if a part of the claim described as a debt is, in truth, not a debt, but a contingent liability. The statute is express that no mortgage shall he valid unless sworn to as prescribed. It may operate hardly, that a failure to comply with the terms of the statute, in regard to a part of the claims secured, should vitiate the whole mortgage; but this hardship cannot change the legal effect of the statute.
Actual fraud is not necessary, to avoid a mortgage for this cause; the objection is a failure to comply with the law; and this is equally decisive, whether it was intentional or otherwise.
The court below did not take the ground suggested in the argument, that an acceptance of Mugridge’s orders, without funds, was not a valid consideration for notes of a corresponding amount. The question was on the validity of the mortgage, upon alleged defects existing in it, and not upon the validity of the notes. The notes might be valid thongh given as an indemnity, and might be a valid foundation for a mortgage, if described in the condition in their true character ; while the mortgage might be void against creditors, if the same notes were described, not as indemnity notes, but as notes payable absolutely, that is, as debts.
The principle that the contract ordinarily implied by the law, on an acceptance for the accommodation of the drawer is, as was stated by the judge, a contract to indemnify, is stated in Chitty on Bills 317, 708, &c. It would be otherwise where bills or notes are exchanged ; and whether there was an exchange of bills, and one bill was transferred,
An exception was taken on account of the rejection of the copy of the account rendered by the mortgagees, of the amount due on their mortgage. There are many suggestions made in the argument, for which we find no color in the case sent to us; as that this account was part of an officer’s return, improperly separated from the rest, and the record mutilated. Nothing of this kind appears in the case. By the case, it appears that an account rendered by the mortgagees was used at the former trial, and a copy of it was among the papers produced as the copy of the case, at the trial of the review. That the plaintiff proposed to read it, as a part of the case, but it was objected to and rejected. It seems to us this ruling was correct. It has never been understood, so far as we are aware, that a copy, though furnished with other copies in the case, can be used, if objection is made, where the original is within reach. In this ease, it appeared that the original .was on the files of the same court where the trial was had. In cases of controversy as to the genuineness of papers, it would materially change the burden of proof, and the position of the parties. No principle or practice is known to us which would give countenance to such a doctrine.
It does not appear clearly that this was the point relied on in support of this exception. The paper in question was an account rendered by the present plaintiff, of the amount due on his mortgage, rendered upon an application under the statute. On the former trial, it was put in evidence by the now plaintiff. The defendant now offers the copy of his own document. It was clearly evidence against him, as his own written statement, his admission of facts. As evidence in his own favor, it is, as clearly, not admissible, since a party’s declarations are not, in general, evidence for himself. Some special ground of exception must be shown, to take the case out of the general rule. He may claim that
It is suggested in the argument, that the call for an account was made on the mortgagee, by the defendant, as a deputy sheriff, and that the account was made part of his return on the writ, by virtue of which the demand was made; that the account would be admissible on the same ground, and between the same parties, as the residue of the return. But the case does not present these facts, and the court cannot treat them as facts because they are so stated in the argument; and, besides, if the return were taken to be evidence between these parties, it would not make this account evidence. The sheriff returns that he demanded an account, and such an account was rendered. This might well be conclusive as to the facts stated, but the officer makes no return as to the truth of the account he received, and neither he nor his employer, the plaintiff, are bound by such account.
The disclosure of one of the plaintiffs in the original suit, made by him as trustee in another case, was offered in evidence. It appeared that this disclosure was read on the former trial, and it was now taken from the files to be again used, but no copy of it was certified by the clerk, among the copies furnished by the plaintiff in review. The evidence was objected to on that account, and the plaintiff in review then asked and was allowed time to furnish such copy. Exception was taken to this order, and to the refusal of the court to order a nonsuit for the want of .this copy.
It seems to us clear that this disclosure was admissible in evidence, whether a copy was certified among the papers or not. It has never been understood that evidence admissible at common law, is to be rejected on review, because it was
We are unable to adopt the rigid construction of this statute provision contended for by the counsel for the defendant in review, that the copies must all be produced, and accessible to the other side, at least as early as the beginning of the trial. The statute imposes no such rigid rule, and the court has, in this case, as in others, a discretion as to the manner of conducting the trial, and ample power to suspend the proceedings, to give time to supply any casual omissions, where the substantial justice of the case seems-to them to require it.
If the court were called upon to establish any imperative-rule in relation to this matter of copies, instead of the rule insisted upon by the counsel, it would probably be one to require any objection on account of the want or absence of' copies, to be made before the trial was commenced, and that if not then taken, the objection was waived.
The exceptions, then, being overruled, there must be
Judgment on the verdict.