Dunham v. Cramer. gagor's wife has not signed the chattel mortgage makes it void under that statute. The terms of the act require more than this to make a chattel mortgage void. It must appear that the household goods included in the mortgage were in the use and possession of a family in this state. All that here appears is that the mortgagor had them in his possession in his hotel. He may have had no family in this state, or if he had, they may not have had these household goods in use. He may have them in the hotel, they may live elsewhere. There is no proof that it is not a purchase-money mortgage. All these must affirmatively appear in order to even claim the enforcement of a penal statute. It is doubtful whether, if such proof were exhibited, such a chattel mortgage would in equity be held to be void any further than to prevent its being considered a lien on the household goods. Green v. McCrane, 10 Dick. Ch. Rep. 440. For failure of proof the mortgage cannot be declared void to any extent on the first ground. The complainant also disputes the validity of the chattel mortgage because, he insists, that the affidavit of consideration does not comply with the requirements of the Chattel Mortgage act. The statute requires that there shall be annexed to the chattel mortgage the affidavit of the holder, stating the consideration of the mortgage and, as nearly as possible, the amount due and to grow due thereon. The affidavit in this case is made by the mortgagee, and states "that the true consideration of said mortgage is as follows, viz.: For the payment of a certain promissory note dated July 8th, 1898, for the sum of eight hundred dollars, this chattel mortgage given as collateral security for the payment of the above note, and there is due on said mortgage the sum of eight hundred dollars, besides lawful interest from the eighth day of July, 1898." In the case of Fletcher v. Bonnet, 6 Dick. Ch. Rep. 615, the court of appeals declared that, in construing affidavits of consideration annexed to chattel mortgages, if the affidavit refers to the annexed chattel mortgage, the affidavit and the mortgage must be read together, to ascertain whether there is a sufficient compliance with the terms of the statute. An examination of the chattel mortgage to which this affidavit is annexed affords no Dunham v. Cramer. aid to the deficiencies of the affidavit, for the chattel mortgage recitals make less disclosure of the transaction than does the affidavit itself. Nothing in this affidavit shows whose promissory note is secured by the chattel mortgage in question, nor who is the holder of that promissory note, nor for what consideration, whether a loan of money, or a sale of goods, or how otherwise the promissory note or chattel mortgage came to be given, nor how the debt was created to secure which the chattel mortgage was made. An affidavit so markedly deficient in the statement of the transaction out of which the mortgage arose affords no opportunity to inquiring creditors of the mortgagor to ascertain whether the chattel mortgage is given for a valuable consideration, which would be binding upon them, or for a merely voluntary one, which would not be obligatory upon them. It was settled in the case of Graham Button Co. v. Spielmann, 5 Dick. Ch. Rep. 122, 123, that the affidavit of consideration annexed to a chattel mortgage must substantially show how the relation of creditor and debtor between the mortgagor and the mortgagee was created. This case was carried to the court of appeals (sub nom. Spielmann v. Knowles, 5 Dick. Ch. Rep. 796), and was there unanimously affirmed for the reasons given in this court. The interpretation there given of the statutory requirement that the affidavit of the holder shall state the consideration of the mortgage condemns the affidavit now under consideration as insufficient. This chattel mortgage of the defendant is also challenged because it was not recorded for over four weeks after it had been made and delivered. The mortgage is dated the 8th day of July, 1898. The affidavit of consideration and the acknowledgment bear the same date. The certificate of the clerk of Cape May shows that it was recorded on the 10th day of August, 1898. Nothing in the case in any way explains this delay in the recording of the mortgage. Its effect was to enable the mortgagor to appear to his creditors and those dealing with him to own the chattels mortgaged, without lien upon them. This might readily operate as a fraud upon creditors, but irrespective of this possibility, or of the actual fact as to this incident, the statute has been interpreted to declare a mortgage so reserved from the record for that cause void. There must be, under the terms of the act, an immediate taking of possession of the chattels mort Dunham v. Cramer. gaged, or there must be an immediate recording of the mortgage. Either course, when taken, is a warning to creditors who may thereafter deal with the mortgagor. If neither be observed, the chattel mortgage is void as to creditors. Roe v. Meding, 8 Dick. Ch. Rep. 368. When a chattel mortgage is kept off the record for more than four weeks after it is made and delivered, and nothing appears which explains so long a delay, it cannot be said that its recording is immediate. The stipulation of the parties provides that the question of good faith of the transactions attacked by the bill and amendment shall be passed. This agreement does not waive the noncompliance with the terms of the statute regarding chattel mortgages. If the provisions of that act are not observed, the chattel mortgage is, for that reason, void as against creditors, irrespective of bad faith or of any intention to defraud. Graham Button Co. v. Spielmann, 5 Dick. Ch. Rep. 128; affirmed on appeal, Id. 796. The complainant also attacks the validity of the bills of sale, because they appear to be, in legal effect, chattel mortgages, and do not comply with the requirement of the Chattel Mortgage act. The stipulation admits that these bills of sale were given by way of security, and that they were in the nature of mortgages. Certified copies of them are produced. They are, apparently, bills of absolute sale of the bottling-house to the defendant Lewis W. Cramer and of the stock of liquor therein to the defendant trading as William C. McDonnell & Company. They are each acknowledged by the defendant William M. Cramer, and have both been recorded. Neither has annexed any affidavit of consideration by the holder. They are admitted to be chattel mortgages, and, by the express terms of the Chattel Mortgage act, are void as against the creditors of the maker, because neither has annexed to it the affidavit of the holder stating the consideration of the mortgage. The statutory requirements extend, not only to every instrument which is in terms a mortgage, but also to every "conveyance intended to operate as a mortgage," &c. Chattel Mortgage act, Gen. Stat. p. 2113 § 52. I will advise a decree that the chattel mortgage and the two bills of sale mentioned in the pleadings are void as against the complainant's judgment, execution and levy. The complainant is entitled to costs. Lodge v. Hulings. SAMUEL D. LODGE, administrator of Rachel R. Hulings, v. ELMER J. HULINGS, executor, &c., et al. [Filed April 16th, 1902.] 1. An agreement between a holder of notes and the heirs of the deceased maker (grandsons of the holder) that the heirs would pay interest on the principal during the life of the holder, in consideration that the holder would surrender her claim to the principal and deliver the notes to the heirs to be destroyed, is founded on both a valuable and a good consideration, and is binding on the holder's administrator when fully executed on the part of the holder by the delivery and destruction of the notes. 2. In a suit by an administrator to reinstate and re-establish notes held by his intestate (which had been surrendered and destroyed pursuant to such an agreement), on the ground that the agreement was void for want of mental capacity of the holder, evidence considered and held to show that the holder was mentally competent to make the agreement. 3. In the suit by the administrator to reinstate and re-establish the destroyed notes formerly held by his intestate, but surrendered and destroyed by her direction pursuant to such an agreement, it appeared that for about two years before the making of the agreement one of the grandsons and the holder had lived in the same house, but in separate apartments. The holder of the notes had her own household and servant, and managed her own housekeeping separate, and apart from that of the grandson. Another grandson lived a few hundred yards away. They were on friendly terms. The holder of the notes was badly crippled, and in feeble physical health, but there was nothing to show that she depended upon the grandsons for advice or service.-Held, the evidence does not establish that a confidential relation existed between her and the grandsons, so as to call upon the latter to show affirmatively that no undue influence was exercised to procure the agreement for the surrender and destruction of the notes. 4. The evidence in this case considered and held to be insufficient to show that at the time she delivered the notes to be destroyed the holder was either mentally incapable, or that she was acting under undue influence. On bill, answer and proofs. Mr. Austin H. Swackhamer, for the complainant. Mr. Joseph J. Summerill, for the defendants. 63 159 a64 761 GREY, V. C. (orally). Lodge v. Hulings. The bill in this case is filed by Samuel D. Lodge, as administrator with the will annexed of Rachel R. Hulings, against Elmer J. Hulings and John T. Ogden, executors of the last will and testament of Paschal L. Hulings, deceased, and against Andrew B. Hulings and Elmer J. Hulings apparently in their individual capacity. The bill sets out copies of two several promissory notes each executed by Paschal M. Hulings, and each promising to pay Rachel R. Hulings the sum of $600 with interest. The notes were both made in the year 1892-the particular dates are of no significance. Paschal M. Hulings was the only son of Rachel R. Hulings. She is proven to have had several other children who were daughters. The substantial allegations of the bill are that Andrew B. Hulings and Elmer J. Hulings, the sons of Paschal, wrongfully obtained the possession of the two notes and destroyed them, and on various occasions, narrated in the bill, suppressed and concealed the fact that they had so destroyed them. The bill prays that the notes may be reinstated and re-established, and declared to be existing and valid obligations, and to be payable out of the estate of Paschal M. Hulings, or out of a portion of the estate of Rachel R. Hulings, his mother, which is in terms bequeathed to him, but which, by operation of the statute, has become payable to his descendants because he has predeceased his mother. The answer of the defendants denies the alleged suppression and concealment of the receipts of these notes by Elmer B. and Andrew J. Hulings, and gives a narrative account of the mode in which the notes came into their possession. They allege that their grandmother, Mrs. Rachel R. Hulings, actually delivered the notes to them with instructions to destroy them; that coincidently with the delivery by her to them of the notes, they had undertaken to pay to her interest on the amount due on the notes during her life (by a written contract which is here produced in court), executed in the office of William Carter, a scrivener, in the presence of himself and his assistants, and they say that that is the explanation of the way in which the notes came into their possession. They deny the right of the complainant to any relief such as is prayed for in the bill. The |