Opinion
12-19-1899
WILSON v. LIPPINCOTT.
T. J. Middleton and John J. Crandall, for complainant. S. A. Atkinson, for defendant.
Bill by Elijah Wilson against James Lippincott to restrain defendant from exercising his power of sale by color of a chattel mortgage held by him. On motion to discharge rule to show cause why an injunction should not issue. Discharged.
T. J. Middleton and John J. Crandall, for complainant.
S. A. Atkinson, for defendant.
REED, V. C. The complainant, as a holder of a second chattel mortgage, attacks the legality of the first chattel mortgage held by the defendant, and asks that the sale of those chattels covered by the two mortgages proposed by the first mortgagee may be enjoined. The attack upon the validity of the first mortgage is directed against the sufficiency of the affidavit to it, in that, first, the affidavit fails to state the true consideration for the mortgage; and, second, that the jurat states that the mortgagor was affirmed, without stating that he was conscientiously scrupulous of taking an oath, and that the person taking the affidavit failed to designate his official character, if he possessed any.
See 2 Gen. St. p. 2113, § 52.
The affidavit states that the true consideration for the mortgage is milk and part of a vendue bill, and then sets out the amount due. I incline to the notion that this statement is sufficient. It is, of course, not stated with the precision which would have been used by a lawyer, but I think that the language employed carries the meaning that the debt secured was for milk furnished by the mortgagee to the mortgagor, and for goods of the mortgagee bought by the mortgagor at vendue. Nor do I think that, in view of the explanatory facts stated in the answering affidavits, the affirmation of the mortgagor is to be regarded as a nullity. Clark v. Collins, 15 N. J. Law, 473; State v. Shreve, 4 N. J. Law, 298; Whitehead v. Rubber Co., 53 N. J. Eq. 454, 32 Atl. 377; on appeal, Magowan v. Baird, 53 N. J. Eq. 656, 33 Atl. 1054.
But, assuming that the affidavit is defective, I am of the opinion that the injunction should not go. The mortgage would still be entirely valid against every one, except a creditor or a subsequent purchaser or mortgagee in good faith. The affidavit attached to the bill does not convince me that the complainant is a bona fide mortgagee. It is true that the affidavit states that he had no notice of the first mortgage. But it requires more than mere ignorance of the first mortgage to constitute him a bona fide mortgagee. He must, by taking his mortgage, have parted with something, surrendered some right, or put himself in a worse position legally than he was before. Milton v. Boyd, 49 N. J. Eq. 142-154, 22 Atl.9901078. He says in his bill that he took his mortgage as a bona fide purchaser for the value above set forth. All that the bill sets forth is that the mortgage was given to secure a debt of $700. In respect to whether the debt was created at the time the mortgage was given, or was a pre-existing debt, is not stated, nor is anything stated from which it appears how the debt was created. The affidavit to the bill, so far as respects the consideration for the mortgage, only supports these general statements. Therefore, aside from the answering affidavits, I am of the opinion that the complainant has not shown himself to be a mortgagee in good faith. The rule to show cause is discharged.