Denton v. Griffith

Tuck, J., delivered the opinion of this court. This bill seeks to subject to the payment of the complainant’s claim certain property mentioned in the instrument of the 8th of April 1848. Two grounds of equity are alleged in pleading, and relied on in argument: 1st, that the instrument is void under the Act of 1846, ch. 271; and 2nd, that if it be valid, notwithstanding this objection, it should be treated as a mortgage, or security for the payment of a previous debt due by James Denton to his father. It is prayed that the property may be sold for the payment of the grantor’s debts, after an account of the alleged mortgage debt. ³⁰⁴ and satisfaction of any balance due/ There is no allegation of fraud, and that ground of relief was disclaimed in the argument.

The disposition which we feel constrained to make of the case, relieves the court from passing upon the pleadings and proofs as to the character and object of the deed; that is, whether it is an absolute bill of sale, or was merely designed to operate as a security for the debt of the grantor to the grantee. The Act of 1846, ch. 271, provides that no deed of mortgage, or bill of sale, shall be valid, &c., except as against the mortgagor or grantor, &c., unless there be endorsed an affidavit of the mortgagee or grantee “that the consideration set forth in such deed of mortgage, or bill of sale, is true and bona fide, as therein set forth.” The purpose of this law was to prevent fraudulent transfers of property, upon false or pretended considerations, and to that end required an affidavit as to the truth and good faith of the consideration expressed in the deed. What effect that consideration might have in determining the character and operation of the instrument, is another question. Here the deed contains a money consideration, alleged to have been paid to the grantor, whilst the affidavit shows an indebtedness