Smith v. Myers

Brent, .J., delivered the. opinion of the Court. The record in this case is so very limited, that we have been somewhat embarrassed in our examination of the questions presented. It contains nothing hut the short docket entries, and the opinion and decree of the Court below. We refer to this, that we may express our disapproval.

The record ought certainly to contain such of the original papers as are necessary to present the case with sufficient fulness. As it is, we are restricted to the opinion of the Court to learn anything of the facts and proceedings in the case. This to say the least, is irregular, but we have concluded to entertain the appeal, although we might well dismiss it upon the ground of an incomplete and imperfect record. The case has been submitted upon printed arguments, and there are but two errors, assigned on the part of the appellant, in 'the views of the Court.

The first is in regard to the affidavit to the mortgage, the present contest arising between creditors and the mortgagee. The appellant contends that the affidavit was not made by the mortgagee in good faith, and that it is untrue in fact. The Court below decided otherwise, and in this the appellant alleges there is error.. . The Code, in Art. 24, sec. 29., provides, ‘'that no mortgage shall be valid, except as between the parties thereto, unless there be endorsed thereon an oath or affidavit of the mortgagee, that the consideration in the mortgage is true and bona fide as therein set forth.” The affidavit in this case is formal and the consideration set forth in the mortgage is a note for five thousand dollars.

In fact the true amount loaned is but $4400, the residue of $600 being usurious or withheld as a bonus. It is therefore ⁴³³ argued that the affidavit is false and void, and the mortgage is to he treated as one without an affidavit endorsed upon it. The consideration expressed in the mortgage is the indebtedness of the mortgagor on and by his note for five thousand dollars, and to the trnlh and good faith of that consideration as set out the affidavit has reference. From the facts stated in the Court’s opinion it is apparent, that the note truly represents the contract made between the parties, at the time of its execution, and that it was in good faith intended by them to express the debt which was to he paid.

It was not designed as a deceit, and there is nothing to show that any fraud was practised in obtaining it. Nor was there any fraud upon creditors intended or contemplated. On the contrary the amount of money loaned was obtained for the purpose of meeting the demands of pressing debts;’and was actually applied to their payment. This being so, it cannot he said that the mortgagee, Myers, either in law or morals was guilty of false swearing, when he made the affidavit that the consideration, set forth in the mortgage, was true, and that it had been given and received in good faith.

As was said by tire Court below, there is nothing immoral in the contract, and it could he enforced to its utmost extent, but for the operation of the laws against usury. These do not render the contract void, or make invalid the