Phillips v. Johnson

10 A. 819 | N.H. | 1887

The statute provides that "Each mortgagor and mortgagee shall make and subscribe an affidavit in substance as follows: We severally swear that the foregoing mortgage is made for the purpose of securing the debt specified in the condition thereof and for no other purpose whatever, and that said debt was not created for the purpose of enabling the mortgagor to execute said mortgage, but is a just debt, honestly due, and owing from the mortgagor to the mortgagee;" 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 mortgagor 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 far varied as to verify the validity, truth, and justice of such liability or agreement;" and that "All wilful falsehood committed in any such affidavit shall be deemed perjury, and punished accordingly." G. L., c. 137, ss. 6, 9, and 11.

A debt due and owing from the mortgagor and mortgagees to the bank is described in the condition, but no liability of the mortgagor to the mortgagees, or liability assumed by the latter for the former, is specified or suggested. The mortgagees placed their names upon the back of the note before it was negotiated to the payee, and were original promisors. Although styled indorsers, in legal effect they are described in the condition as makers. Martin v. Boyd, 11 N.H. 385; Benton v. Willard,17 N.H. 593; Currier v. Fellows, 27 N.H. 366. There is nothing in the condition or in the note itself from which it could be inferred that they were sureties. Upon the face of the papers they are principals. Whitehouse v. Hanson, 42 N.H. 9; Maynard v. Fellows, 43 N.H. 258. The defect in the condition is not cured by the statement of the consideration of the mortgage. No reference to it is made in the condition. What the "$1,000 liability incurred" for the mortgagor by the mortgagees was is not stated. It might be the liability on the note for $1,000 subsequently described, or it might be any other liability for that amount. It is not sufficient that one reading the mortgage would more naturally suppose it to be the former. The liability intended to be secured is not to be left to conjecture or inference. It must be truly and specifically stated. It is not necessary not to determine whether a true and specific statement of the liability in the body of the mortgage, so referred to that it might by construction be deemed a part of the condition, would be sufficient. Stone v. Marvel, 45 N.H. 481.

The affidavit is insufficient. It is not so far varied as to verify the validity, truth, and justice of the liability intended to be secured. It makes no allusion to any liability of the mortgagor to the mortgagees. It verifies nothing except the validity, truth, and justice of the indebtedness of the mortgagor to the bank. Parker v. Morrison, 46 N.H. 280. The parties could not be convicted of perjury if they were all principals upon the note, if the mortgagees were principals and the mortgagor their surety, or if the names of the mortgagees were not upon the note. In all these cases the affidavit would be strictly true.

It is not necessary to consider the other questions raised in the case.

Judgment for the defendant.

ALLEN and BINGHAM, JJ., did not sit: the others concurred.