Buck v. Gladfelter

Constable, J., delivered the opinion of the Court. This appeal is’from an order overruling exceptions to the ratification of a sale made under foreclosure proceedings of a mortgage, and finally ratifying and confirming said sale. The appellants are the holders of a subsequent mortgage. The ground urged for a reversal is that the mortgage of the appellee is invalid, except as against the mortgagor, as to all persons without actual notice, because of a defective certificate of the affidavit as to the consideration.

The mortgage in question was made by the mortgagor to the Baltimore Trust Company, a body corporate. It was acknowledged in due form by the mortgagor before a notary public, and at the same time the affidavit as to the consideration was made by one Charles D. Fenhagen in the following form: “At the same time, also appeared Charles D. Fenhagan, and made oath in due form of law that the consideration set forth in said mortgage is true and tona fide as therein set forth.” The mortgage was subsequently assigned to the appellee. The contention of the appellant is that, under the provisions of the Code, this affidavit is defective and creates no ³⁶ valid lien against the property, except as against the mortgagor. There is no question presented in the record as to whether or not the appellants had actual notice of the prior mortgage.

The appellee, over the objection of the appellants, and all of which was excepted to, proved by Charles D. Eenhagen that, at the time of making the affidavit to the mortgage, he was the secretary and treasurer of the mortgagee, and made the affidavit as such officer and not in his individual capacity; and proved by the notary public, before whom the affidavit was made, that he knew at the time of so taking the affidavit, that Mr. Eenhagen was the secretary and treasurer of the mortgagee, and that he made the affidavit as such officer and not in his individual capacity. Article 21, section 32 of the Code (1912) provides: “bTo mortgage shall he valid except as between the parties thereto, unless there be endorsed thereon, an oath or affirmation of the mortgagee that the consideration in said mortgage is true and bona -fide as therein set forth * * * This affidavit may be made at any time before the mortgage is recorded, before anyone authorized to take the acknowledgment of a mortgage, and the affidavit shall be recorded with the mortgage.” Section 33 of the same Article provides: “The affidavit required by the preceding section may be made by one of several mortgagees and shall have the same effect as if made by all; or the said affidavit may be made by any agent of a mortgagee; and when made by an agent, he shall, in addition to the affidavit above mentioned, make affidavit, to be endorsed upon the mortgage, that he is the agent of the mortgagee or mortgagees, or some one of them; which affidavit shall be sufficient proof of such agency; and the president or other officer of a corporation, or the executor of the mortgagee may make such affidavit.” ³⁷ The appellants contend that the certificate of the affidavit is defective in two particulars and that it cannot he cured by parol evidence. These defects are omissions (1) to show upon the face of the certificate that Charles D. Eenhagen was an officer of the corporation, and (2) that a further affidavit should have been made by Eenhagen that he was an agent or officer of the corporation. First as to the second of these contentions.

From a reading of the two sections just quoted, we think it clear that it was not the intention to require an officer of a corporation to make the affidavit that section 33 requires to be made by agents of mortgagees. Section 32 provides that the mortgage shall be invalid, except that the mortgagee makes the affidavit prescribed in that section. Section 33 is inseparably connected with it, in that it provides the different modes by which the provision of section 32 may be carried into effect. It first provides that, where there are several mortgagees, the affidavit by one shall be sufficient.

It next permits an agent to make the affidavit for the mortgagee, but in express terms, requires that, in addition to the affidavit mentioned in section 32, there be endorsed upon the mortgage an affidavit that he is the agent of the