Opinion
December Term, 1859
John H. Reynolds, for the plaintiff in error.
Philo Gridley, for the defendant in error.
The affidavit on which the right of the original purchaser was sought to be acquired, was, in my opinion, defective in the manner of stating the amount due upon the mortgage. It says: "That there is actually due or to become due on said mortgage, at this, the time of claiming a right to purchase or redeem thereon, over and above all payments, the sum of $6,433, as claimed by this deponent."
The statute requires an affidavit, stating the true sum due, or to become due, over and above all payments. The sum thus stated is the amount which any other person seeking, in pursuance of the statute, to subsequently acquire the same right, must pay. There is, therefore, good reason for saying that the statement shall be made in such manner as to have the direct and positive sanction of the party's oath to its truth; and that, not only so as to bind his conscience by the solemnity of an oath, but also to subject him to the penalties of the law in case the statement is untrue.
I can make nothing more of the statement in this case than that the party claims the sum stated to be due over and above all payments. That claim he may believe to be unfounded, and he has said nothing to show that he does not so believe. The statement falls short of the positiveness which would be involved in a statement that he believed the sum to be due. On that perjury might be assigned. But on his affidavit that he claims so much to be due, the affidavit itself is a claim which would probably protect him from a conviction for perjury, should the claim turn out to have been made without any foundation. We might as well say at once that no affidavit is necessary, as to hold that this is sufficient.
COMSTOCK, DENIO, STRONG and GROVER, Js., concurred.
Judgment affirmed.