Reiff v. Eshleman

Brent, J., delivered the opinion of the Court. . There are two appeals contained in the same record. They have been argued together, and we shall dispose of them in one opinion. In the appeal of Reiff and others against Daniel Eshleman, the question involved is the priority of their respective mortgages.

The mortgage of Daniel Eshleman is the first in date, hut it is objected, that although it has been put upon the records in time, it is void, because there is no proper affidavit by the mortgagee, appended to it, of the bona fides of the consideration expressed in it. By referring to the mortgage, it is very apparent that this objection is well founded. There is attached to it what purports to be a certificate that an affidavit was made in the State of Pennsylvania before a person styling himself a justice of the peace of that State. It is signed “A. B. Reidenbach, J. P.” hut is without any other authentication.

In this form the certificate can have no weight, and the mortgage must be considered as one without an affidavit endorsed upon it. The 29th section of Article 24 of the Code provides that, “Ho mortgage shall he valid, except as between the parties thereto, unless there he 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 any one authorized to take the acknowledgment of a mortgage, and the affidavit shall he recorded with the mortgage.” As the question has been argued, it may he said, that the right of a mortgagee to make the required affidavit ⁵⁸⁸ before a justice of the peace of another State is not presented in this case, and we do not wish to be understood as intimating an opinion upon it. Under the section of the Code just cited, we think it clear, that an endorsement of the required oath upon a mortgage before it is recorded is essential to its validity. The Act not only requires the affidavit, but in equally mandatory terms requires it to be endorsed on the mortgage and recorded with it.

The fact that the oath was taken is not the subject of parol proof. It can only be established by the mode mentioned in the law, that is, by a formal endorsement upon the mortgage. The mortgage of Eshleman being in this respect imperfect and defectively executed, cannot be aided in any respect by being placed upon the records. The registration of it, like that of a deed defectively acknowledged, does not operate as constructive notice.

But it is argued on the part of the appellee that the appellants at the time of the execution of their mortgage had actual notice of this mortgage. If so, it is conceded in the brief filed on the part of the appellants that such notice establishes its priority. And this is in accordance with the decisions in this State. Upon this branch of the case we think the proof quite sufficient to establish actual notice.

The testimony of Mr. Small is very conclusive and satisfactory. His position as a member of the bar, and as the attorney who prepared the mortgage of the appellants, enables him to speak with accuracy and certainty upon this matter. The details of his testimony preclude any presumption that he has erred, and he expressly states, that in informing the appellants of the incumbrances upon the land, proposed to be mortgaged to them, he included the mortgage of Daniel Eshleman. We have seen no circumstance to impair the weight of this proof, and upon the ground that there was actual ⁵⁸⁹ notice of the incumbrance of the appellee, we shall affirm the ruling of the Court below sustaining the exceptions of Eshleman to the auditor’s account, and its order ratifying account Ho. 2, re-stated in accordance with such ruling.

The next appeal is that of Israel Eeiff, John Horst and Mary W. Miller, against Anna Horst. • The appellants, Eeiff and Horst, were mortgage creditors of Abraham Horst, and Mary W. Miller was a judgment creditor. Anna Horst, the appellee, had united with her husband in the mortgage to Daniel Cearfoss, John Horst and Israel Eeiff, and in mortgages to other parties. Abraham Horst becoming involved, executed on the tenth day of July, 1876, a deed of trust, in which his wife, Anna Horst, joined, of all his property of every description to Daniel Cearfoss, John Horst and Israel Eeiff, stipulating for its sale, and for the payment, first, ’of all liens and incumbrances according to their priority, and secondly, of all the other debts of Abraham Horst, without any preference or priority among them. The deed also contains the following clause: “And whereas, the said Anna Horst, wife of the said Abraham Horst, hath a contingent right of dower in the lands conveyed by this deed, it is expressly agreed and understood, that her joining in the execution hereof is upon