46 N.H. 280 | N.H. | 1865
No question is here raised as to whether this mortgage is or not valid as between the parties. But the only question is, is it good as against creditors of the mortgagor? Chap. 132, Rev. Stats, sec. 3, provides that-"the mortgagor and mortgagee shall make .and subscribe an affidavit in substance as follows,” then follows the form of oath adopted in this case. Sec. 4, provides that "if such mortgage as given to indemnify the mortgagee against any liability assumed, orto -secure the fulfilment of any agreement, other than for the payment of a ¡debt due from the mortgagor to the mortgagee, such liability or agreement shall be stated truly and specifically in the condition of the mort
The mortgage in the case before us was evidently given to secure a liability which the mortgagee had incurred for the mortgagor, by signing a note with him to a third person. It is claimed in the argument that the word "debt,” as used in this affidavit, is broad enough to cover any liability or obligation, and hence, as it is claimed, that the liability is properly described in the condition of the mortgage, that the oath is well enough in this case. But such, most evidently, was not the intent of the statute, when it expressly provides that when the mortgage is given to indemnify the mortgagee against any liability assumed, other than for the payment of a debt due from the mortgagor to the mortgagee, the affidavit shall be so far varied as to verify the validity, truth and justice of such liability, and when it is expressly declared that such mortgage shall not be valid against creditors, unless it is sworn in the manner herein prescribed. The affidavit in this case does not verify the validity, truth and justice of any liability whatever. It was not so far varied as to do this, as the statute requires it should be, and hence, according to the express terms of the statute, the mortgage is void as against the creditors of the mortgagor; and it makes no difference whether the omission to vary the oath was a mistake, an oversight, or the result of ignorance in regard to the provisions of the statute.
We are not called on to decide whether the liability is properly described in the condition of the mortgage or not, as the affidavit is clearly insufficient to answer the requirements of law, nor do we need to consider any of the other questions raised in- the case. The statute requires the oath of the mortgagee as much as the oath of the mortgagor, and the debt must be due and owing to the mortgagee as well as from the mortgagor. All these portions of the oath are material and substantial. Hence, when a mortgage of personal property is given to secure a debt, in the technical sense in which that term is used in this statute, it must be a debt due and owing from the mortgagor to the mortgagee. If it is given to secure a liability it must be the liability of the mortgagee assumed for the mortgagor. If it is given to secure the performance of any other agreement it must-be an agreement between the mortgagor and the mortgagee, to the truth, validity and justice of which they are both able to testify. The simple reading of our statute would seem to be a full and perfect answer to the argument that such mortgages, like mortgages of real estate, may be given to a stranger to secure the debt of any third person, nor do we find any countenance given to such a position in the authorities cited in support of it.
In the case before us, if the mortgage had been given to secure the debt to Aldrich, it must have been given to Aldrich, as mortgagee. But if given to secure the liability which this plaintiff has incurred for
Judgment for defendant.
