Jackson v. County Trust Co.

Sloan, J., delivered the opinion of the Court. This appeal is from an order overruling exceptions by the purchaser to a mortgagee’s report of sale, and the ratification of the sale. On March 31st, 1938, William L. Hughes executed a mortgage to the County Trust Company to secure the payment of §1500 and the interest thereon. Default having occurred, the mortgagee foreclosed and sold the mortgaged property to Leander C. Jackson and M. Gertude Jackson, his wife, appellants, for §2855, and reported the sale so made, to which the purchasers excepted on the ground that the mortgage was “null and void, except as between the parties, for the reason that no proper or sufficient affidavit is endorsed thereon, as required by Article 21, Sections 32, 33, and 34 of the Maryland Code of Public General Laws.” The mortgage was acknowledged by William L. Hughes before a Notary Public, who certified that, “* * * at the same time also appeared George E. Rullman, Attorney named in the foregoing mortgage, and made oath in due form of law that the consideration set forth in said mortgage is true and bona fide as therein set forth.” On April 16th, 1938, William L. Hughes executed another mortgage to the County Trust Company for §1000, followed by the entry of six judments, one of them in favor of Leander C. Jackson, appellant, for §1000. ⁵⁰⁷ Section 33, article 21, of the Code, provides that, “No mortgage shall be 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,” and the succeeding section (34), that, “The affidavit required by the preceding section * * * 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.” The appellants contend that, because of the failure of the mortgagee to comply with the statutory requirements with respect to the consideration for the mortgage, it is void as to the subsequent judgment creditors, as being without constructive notice of the mortgage, (Cockey v. Milne’s Lessee, 16 Md. 200, 207 ) one of them, Leander C. Jackson, testifying that he did not have actual notice, and that therefore the mortgage is subordinated to his claim.

While the other judgment creditors are not parties to this proceeding, what is said of Jackson’s judgment would apply to theirs as well. For their contention that the mortgage is invalid, except as between the parties, the appellants rely on the case of Milholland v. Tiffany, 64 Md. 455, 459 , 2 A. 831, 833 , where it was said that the mortgage under which the appellee claimed was “fatally defective” except as between the parties, because the affidavit of the agent did not conform with the statute. “The mere declaration on the part of the justice of the peace that he appeared before him as the agent of the appellee, cannot be construed as meaning that W. Gilmor Hoffman made oath that he was the agent; and, as the Code requires the agent to make this oath, such a certificate is not a substantial compliance with the statute.” See Phillips v. ⁵⁰⁸ Pearson, 27 Md. 242, 256 , in which it was said: “The act does not declare the mortgage shall be void, but that no mortgage shall be valid and effective, except as against the mortgagors or grantors, unless sanctioned by an affidavit.” The affidavit to the consideration in the mortgage cannot, therefore, be sustained, for the reason that the notary did not certify that the affiant had sworn that he was the agent of the mortgagee. The appellee contends that the mortgage is valid, and the affidavit sufficient, on the authority of Buck v. Gladfelter, 122 Md. 34 , 89 A. 317 . In that case Charles D. Fenhagen, without any description or designation, had “* * * made oath in due form of law that the consideration set forth in said mortgage is true and bona fide as therein set forth.” The mortgage foreclosed had been made to the Baltimore Trust Company.

A subsequent mortgagee excepted to the report of sale. At the hearing evidence was received that James B. Fenhagen “was the secretary and treasurer of the mortgagee and that he made the affidavit as such officer and not in his individual capacity.” The last clause of section 34 of article 21 of the Code, says “* * * the president, or other officer of a corporation * * * may make such affidavit.” The