Marlow v. McCubbin

Alvey, J., delivered tlie following dissenting opinion: I cannot assent to tlie opinion of tlie majority of the Court in this case. I am decidedly of the opinion that the affidavit to the mortgage in question is fatally defective. The law (Code, Art. 24, secs. 29 and 51) requires the mortgagee to make an affidavit, to he endorsed on the mortgage, “that the consideration in said mortgage is true and bona fide as therein set forth ;” and without such affidavit no mortgage is valid except as between the parties thereto. In the affidavit to the mortgage before us it is simply stated that the consideration mentioned in the mortgage is bona fide as therein set forth, omitting, and without any equivalent term, the word “true.” In my opinion this omission is not supplied by'the words “bona fide,” used in the affidavit.

The good faith of a transaction, in the sense that the consideration for it is not feigned or pretended, is one thing, and the truth of it, in regard to its accuracy and correctness as stated, and as being the true cause of making the deed, is another and a different thing ; and as the Legislature has thought proper to require that the affidavit shall he made as to both the truth and the bona fides of the consideration as set forth in the instrument, I do not think that the Courts should relax the requirement in any particular ; as by so doing they are in danger of defeating the purpose of the Legislature. The safer course is certainly to hold to a- strict compliance with the statute; and I think that has been the conclusion of this Court as expressed in the case of Denton and Wife vs. Griffith, 17 Md., 301 . There, in speaking of the requirement of the Act of 1846, chapter 211, codified in the sections of the Code before referred to, the Court said: “It (the Act) does .not provide that the affidavit may show some bona fide consideration, hut intends that it shall appear by the oath of the party taking the deed* that the consideration mentioned therein was the true cause of making it.” Anri being of opinion that the affidavit to the mortgage is thus defective, I am further of opinion that the mort ¹⁴¹ gage cannot be set up even as a contract, as against the creditors of tbe mortgagor ; that the mortgage being void as to creditors, it would defeat the policy and object of the Legislature to allow it to be set up on the footing of a contract for a lien or mortgage, as against creditors without notice. This would seem to be fully decided by the cases of Cockey vs. Milne’s Lessee, 16 Md., 200 , and Nelson vs. Hagerstown Bank, 27 Md., 73 .

Miller, J., delivered the opinion of the Court. In our opinion the only question that need be determined in this case is, whether the mortgage executed by Parmenio Marlow to his mother Mary Marlow is valid as against the creditors of the mortgagor or not? The sole ground upon which its invalidity, in this respect, has been placed, is that no such affidavit thereto has been made by ¹³⁶ the mortgagee as is required by sections 29 and 51 of Article 24 of the Code, which provide in effect that “no hill of sale or mortgage of personal property shall he valid, except as between the parties, unless the bargainee, or vendee, or mortgagee, or some one of them, or the agent of some one of them, shall make affidavit to he endorsed thereon, that the consideration in said hill of sale or mortgage is true and bona fide as therein set forth.” The instrument in question is as follows : “ This mortgage made this 31st day of May, in the year 1869, hy me, Parmenio Marlow of Frederick County, and State of Maryland: witnesseth, that I, the said Parmenio Marlow being now indebted to Mary Marlow of said County and State in the sum o/’$2075, the amount of my bond which she, the said Mary Marlow, holds against me for said amount, dated the 3rd day of April, 1869, and made due and payable on the 1st day of April, 1870, and in order to secure to the said Mary Marlow the full payment of said $2075, and the interest thereon when due, I, the said Parmenio Marlow, do grant unto the said Mary Marlorv the following property, which I have in and about the premises I now occupy as tenant of the said Mary Marlow, viz: ’ ’ (then follows a description of the property conveyed, consisting of horses, cattle and other stock, farming implements, ■farm produce and growing crops, and household and kitchen furniture,) “provided, that if I, the said Parmenio Marlow, shall fully pay or cause to he paid to the said Mary Marlow the said sum of $2075, and the interest thereon in full when the same shall he due, then this mortgage shall he void and of no effect, otherwise to remain in full force and virtue. ” The acknowledgment hy the mortgagor before a Justice of the Peace is in due form and the affidavit of the mortgagee is as follows : “and at the same time before me, also personally appeared, Mary Marlow and made oath on the Holy Evangely of Almighty God, that the consideration mentioned in the foregoing mortgage is bona fide as therein set forth.” ¹³⁷ This Court has frequently declared it was the purpose of this statutory provision to prevent fraudulent transfers of property upon false or pretended considerations, and not only thus to protect creditors against frauds, but also to enable them to claim against such instruments when executed without the required affidavit as void in law, no matter how the question of actual fraud may stand. Cockey vs. Milne’s Lessee, 16 Md., 207 .

But it has never been decided there must be