Marlow v. McCubbin

| Md. | Apr 22, 1874

Lead Opinion

Miller, J.,

delivered the opinion of the Court.

In our opinion the only question that need be determined in this case is, whether the mortgage executed by Parmenio Marlow to his mother Mary Marlow is valid as against the creditors of the mortgagor or not? The sole ground upon which its invalidity, in this respect, has been placed, is that no such affidavit thereto has been made by the mortgagee as is required by sections 29 and 51 of Article 24 of the Code, which provide in effect that “no hill of sale or mortgage of personal property shall he valid, except as between the parties, unless the bargainee, or vendee, or mortgagee, or some one of them, or the agent of some one of them, shall make affidavit to he endorsed thereon, that the consideration in said hill of sale or mortgage is true and bona fide as therein set forth.” The instrument in question is as follows :

“ This mortgage made this 31st day of May, in the year 1869, hy me, Parmenio Marlow of Frederick County, and State of Maryland: witnesseth, that I, the said Parmenio Marlow being now indebted to Mary Marlow of said County and State in the sum o/’$2075, the amount of my bond which she, the said Mary Marlow, holds against me for said amount, dated the 3rd day of April, 1869, and made due and payable on the 1st day of April, 1870, and in order to secure to the said Mary Marlow the full payment of said $2075, and the interest thereon when due, I, the said Parmenio Marlow, do grant unto the said Mary Marlorv the following property, which I have in and about the premises I now occupy as tenant of the said Mary Marlow, viz: ’ ’ (then follows a description of the property conveyed, consisting of horses, cattle and other stock, farming implements, ■farm produce and growing crops, and household and kitchen furniture,) “provided, that if I, the said Parmenio Marlow, shall fully pay or cause to he paid to the said Mary Marlow the said sum of $2075, and the interest thereon in full when the same shall he due, then this mortgage shall he void and of no effect, otherwise to remain in full force and virtue. ” The acknowledgment hy the mortgagor before a Justice of the Peace is in due form and the affidavit of the mortgagee is as follows : “and at the same time before me, also personally appeared, Mary Marlow and made oath on the Holy Evangely of Almighty God, that the consideration mentioned in the foregoing mortgage is bona fide as therein set forth.”

This Court has frequently declared it was the purpose of this statutory provision to prevent fraudulent transfers of property upon false or pretended considerations, and not only thus to protect creditors against frauds, but also to enable them to claim against such instruments when executed without the required affidavit as void in law, no matter how the question of actual fraud may stand. Cockey vs. Milne’s Lessee, 16 Md., 207. But it has never been decided there must be an exact and literal following or incorporation of the words of the statute in the affidavit or otherwise it will be insufficient. On the contrary a substantial compliance, a compliance which meets and sub-serves the purpose and design of the Act is all that the law requires. This doctrine has been firmly established by numerous decisions of this Court in similar and analogous cases, from its organization to the present time. Without reviewing them in detail we refer among others, to the cases of Hollingsworth vs. McDonald, 2 H. & J., 237; Hall vs. Gittings, 2 H. & J., 380; Beale vs. Lynn, 6 H. & J., 355; Young vs. The State, 7 G. & J., 253; Warner vs. Hardy, 6 Md., 525. and Friend vs. Hamill, 34 Md., 302.

A careful examination of the case of Denton vs. Griffith, 17 Md., 301, upon which the learned Judge of the Court below rested his decision, that the present affidavit was insufficient, has convinced us that that case does not warrant the conclusion he has drawn from it. There the instrument on its face was an absolute bill of sale, in consideration of 01500 current money, paid bjr the grantee to the grantor, and the affidavit of the former was simply that the grantor “stands justly indebted to him in the sum of 01500 clear of all deductions.” In passing upon the sufficiency of this affidavit the Court, after stating in general terms that the purpose of the statute was to prevent fraudulent transfers of property upon false or pretended considerations, and to that end required an affidavit to the truth and bona fides of the consideration expressed in the deed, proceed to consider the particular affidavit and its delects, and they say: “Here the deed contains a money consideration alleged to .have been paid to the grantor, whilst the affidavit shows an indebtedness by one party to the other without even stating that such clebtiuas the consideration of the instrument, which- might have been done if that was the design of the transaction, for a debtor may pay his debt on agreement with the creditor, hjr a transfer of property.” Then follows the true point of the decision as authority, thus: “The Act does not provide that the affidavit may show some bona fide consideration, but intends that it shall appear by the oath of the party taking the deed, that the consideration mentioned thérein was the true cause of malcing it. A deed executed in this way appears to us to be loithin the mischiefs intended to be provided against by the Legislature, for frauds could be committed under cover of such instruments which creditors might have no means of exposing. Looking to the body of the deed the consideration might give it one character and that expressed in the affidavit another and quite different effect. It would be an absolute sale or'mortgage, according as such discrepancy between the instrument and affidavit might be viewed' by the tribunal to pronounce upon it, when, as we think, the law requires they should show the same consideration.”

The point of that case is that the deed and affidavit must show the same consideration, and- that it should appear by the affidavit that the consideration mentioned in the deed was the true cause of making it. Is it not thus plainly shown and made to appear in the case before us ? Here the deed, upon its face, is a mortgage. It sets out clearly a specific indebtedness by the grantor to the grantee, and professes to be made solely to secure that indebtedness. The affidavit then states that the consideration thus mentioned in the mortgage is bona fide as therein set forth. There is not only no discrepancy between the* two hy which the deed could he made absolute or a mortgage as it might be viewed by a Court oí' Justice, but to our apprehension the terms of the affidavit include a plain averment that the consideration as set forth in the deed was the true and only cause of its being made. The insertion of the word “ true ” would, in our opinion, impart to the affidavit no additional substance or force. Tiie consideration mentioned in the instrument, if fabricated and false, could not be bona fide, nor if untrne could it be therein set forth in good faith. We think it very clear, (and indeed it was so conceded by the appellant’s counsel in argument) that falsity in the consideration as stated in this mortgage, would warrant the assignment of perjury upon this affidavit. It therefore appears to us to he a substantial compliance with the requirements of the statute, and in thus determining it to he sufficient, we do not consider that we shall he opening the door to any of the mischiefs which this provision of the Code was enacted to prevent, or to the commission and concealment of frauds by dishonest parties to the prejudice of honest creditors. This is a danger always to be most carefully guarded against by the Courts, hut, in our judgment, we could not pronounce this affidavit insufficient without adopting (as in view of the authorities we cannot) the1 sharp and harsh rule that the very words of the statute must in all cases he adopted and used.

(Decided 22nd April, 1874.)

Having thus determined the mortgage to he valid it follows that the decree appealed from, which annuls it as to creditors, must be reversed and the appellee’s bill dismissed. We place the reversal on this ground alone, without expressing any opinion whether a Court of Equity would have any jurisdiction in this ease even if' the mortgage was void as to creditors.

Decree reversed and bill dismissed.

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Dissenting Opinion

Alvey, J.,

delivered tlie following dissenting opinion:

I cannot assent to tlie opinion of tlie majority of the Court in this case. I am decidedly of the opinion that the affidavit to the mortgage in question is fatally defective. The law (Code, Art. 24, secs. 29 and 51) requires the mortgagee to make an affidavit, to he endorsed on the mortgage, “that the consideration in said mortgage is true and bona fide as therein set forth ;” and without such affidavit no mortgage is valid except as between the parties thereto. In the affidavit to the mortgage before us it is simply stated that the consideration mentioned in the mortgage is bona fide as therein set forth, omitting, and without any equivalent term, the word “true.” In my opinion this omission is not supplied by'the words “bona fide,” used in the affidavit. The good faith of a transaction, in the sense that the consideration for it is not feigned or pretended, is one thing, and the truth of it, in regard to its accuracy and correctness as stated, and as being the true cause of making the deed, is another and a different thing ; and as the Legislature has thought proper to require that the affidavit shall he made as to both the truth and the bona fides of the consideration as set forth in the instrument, I do not think that the Courts should relax the requirement in any particular ; as by so doing they are in danger of defeating the purpose of the Legislature. The safer course is certainly to hold to a- strict compliance with the statute; and I think that has been the conclusion of this Court as expressed in the case of Denton and Wife vs. Griffith, 17 Md., 301. There, in speaking of the requirement of the Act of 1846, chapter 211, codified in the sections of the Code before referred to, the Court said: “It (the Act) does .not provide that the affidavit may show some bona fide consideration, hut intends that it shall appear by the oath of the party taking the deed* that the consideration mentioned therein was the true cause of making it.”

Anri being of opinion that the affidavit to the mortgage is thus defective, I am further of opinion that the mortgage cannot be set up even as a contract, as against the creditors of tbe mortgagor ; that the mortgage being void as to creditors, it would defeat the policy and object of the Legislature to allow it to be set up on the footing of a contract for a lien or mortgage, as against creditors without notice. This would seem to be fully decided by the cases of Cockey vs. Milne’s Lessee, 16 Md., 200, and Nelson vs. Hagerstown Bank, 27 Md., 73.