CHATTEL MORTGAGES-Continued.
Evidence held insufficient to show that horses were sold under reservation of title as affecting a chattel mortgage cover- ing after-acquired property.
Under 2 Gen. Stat. 1895 p. 2113 § 52, making a chattel mortgage void as against the mortgagor's creditors unless it has annexed an affidavit stating the consideration of the mortgage, the affidavit must show how the debt arose on which the mort- gage is founded, how the debt came into existence, and how the relation of debtor and creditor as between the mortgagor and the mortgagee was created. Id.... . . . .
An affidavit reciting that the consideration for a chattel mortgage was “a balance of $700 due upon a judgment recovered by E. against J. and assigned to deponent" is sufficient under 2 Gen. Stat. 1895 p. 2113 § 52, which makes a chattel mortgage void as against the mortgagor's creditors, unless it has annexed an affidavit stating the consideration.
13. Under 2 Gen. Stat. 1895 p. 2113 § 52, which makes a chat- tel mortgage void as against the mortgagor's creditors unless it has annexed an affidavit stating the consideration, where a mortgage is based on a judgment, the affidavit need not recite how the antecedent obligation merged into the judgment arose. Id.
A mere judgment against one is not sufficient consideration to support a chattel mortgage; it being necessary that disad- vantage result to the mortgagee or advantage to the mortgagor. Id.
Under 2 Gen. Stat. 1895 p. 2113 § 52, which makes a chat- tel mortgage void as against a mortgagor's creditors unless it has annexed an affidavit stating the consideration, a statement that the consideration was "also $700" which the mortgagor owed, which debt was assigned to the mortgagee, is insufficient. Id.
Under 2 Gen. Stat. 1895 p. 2113 § 52, which makes a chattel mortgage void as against the mortgagor's creditors unless it has annexed an affidavit stating the consideration, a mort- gage is void where the consideration is insufficiently stated in part. though partly sufficient. Id..
Where a second chattel mortgage is void as against a creditor, and the mortgagee also holds the first mortgage, the creditor can require the mortgagee to apply to the first mort- gage the proceeds of property covered by such mortgage on which the creditor has no lien. Id....
CHATTEL MORTGAGES—Continued. 18. Where a prior lienor has more funds or property subject to his lien than a subsequent lienor has, the former, if required. must, as respects the latter. first exhaust his rights against that fund or property on which the latter has no lien. Id......... 439 19. In computing overdue interest and crediting part pay- ments, the excess of payment over matured interest should be used in discharging principal, and subsequent interest should be computed on the principal thus reduced; but, if the payment be less than the interest, the surplus of unpaid interest must not be taken to augment the principal, but interest continues on the former principal until the period when the payments, taken together, exceed the interest due, and then any surplus is to be applied toward discharging that principal, and interest is to be computed on the principal thus reduced. Id................ 439
20. A judgment creditor of a chattel mortgagor with a levy on specific property is entitled to attack a chattel mortgage which is void for non-compliance with statutory requirements. Id.
COLLATERAL INHERITANCE TAX-1. Bequests to religious corporations of a foreign state are subject to the payment of collateral inheritance tax under the law of this state, and are not exempt therefrom under the exemption contained in the amendment to the Collateral Inheritance Tax act (P. L. 1906 p. 432), which is the only exemption now in force. ESTATE OF GOPSILL...
Although there is no repealer in the said amendment, and repealer by implication is not favored, still repealer by neces- sary implication is recognized, and the intention of the legis- lature in this regard, when ascertained, governs. Id....... 215
The exemption in the amendment (P. L. 1906 p. 432) covers the whole subject of exemptions, clearly indicating an intention on the part of the legislature to establish the latter act as the only enactment.
COLLATERAL SECURITY-A bank accepted stock standing in the name of a third party, endorsed in blank as security for a loan to one of its customers. It had notice that the owner of the stock was an invalid, and the cashier wrote asking her if the endorsement was genuine. He received a reply, signed by the invalid. confirming the signature. It subsequently appeared that the invalid was of unsound mind.-Held. notice to the bank that the owner was an invalid was not notice that the owner was of unsound mind. Under the circum- stances, the bank was entitled to a lien upon the stock for the residue of the debt of its customer thereon, after first ex- hausting its remedy against other collateral for the same debt and against its customer individually. GROFF v. STITZER...... 260
CONSTITUTIONAL LAW-On an application for preliminary relief in a court of first instance, the constitutionality of a statute may be assumed. GLOUCESTER WATER Co. v. AM. PIKE CO.
CONTRACTS-1. A contract between a master and a servant which absolves the master from responsibility for his own negligence is invalid. TWAITS . PENNSYLVANIA RAILROAD Co.
2.- A contract between a servant of a railroad and its relief department. which stipulates that the acceptance of benefits from the relief fund for injury or death shall operate as a release of claims for damages against the railroad arising from such injury or death, is not invalid as absolving the railroad from responsibility for its own negligence, because. after an accident. the servant may either sue the railroad or accept the benefits accruing to him by reason of his contract with the relief de- partment. Id. ....
A party to a contract giving alternative rights, who exer- cises his right of choice and makes an election, is concluded thereby under the doctrine of election at law, though, under the doctrine of election in equity, a mere acceptance does not con- clusively evidence election. Id. ...
4. —— A servant of a railroad became a member of its relief de- partment under an application reciting that the acceptance of benefits from the relief fund for injury or death should operate as a release of claims for damages against the railroad for such injury or death. After an injury he accepted benefits from the relief fund, and signed a receipt in full for payment on account of the injury. There were no misrepresentations or concealments. He had forgotten the provisions of the applica- tion at the time of the acceptance of the benefits and the signing of the receipt.-Held that, though the doctrine of election of rights applied. the servant made his election, and he could not be relieved in equity from the effects thereof. Id...... ... 103
3. Where a party to an unambiguous contract which gives him alternative rights elects one of the rights. he cannot rescind his election merely because he regrets that he did not select the other, or merely because he had forgotten the terms of the contract which he had read and signed, and which he could re-read at the time he made his election. Id..
- A contract between a contractor for alterations on a public school building and a sub-contractor provided for "tin roofing cornices, slate work leader & all metal works for Lincoln ave. school as per plans & spec. by E. F. Gilbert, arch. & to his satis- faction, for the sum of twenty-seven hundred dollars ($2.700). Lincoln avenue school. accepted."—Held, that under this agree-
ment, the sub-contractor was not entitled to his pay until he had finished his sub-contract, nor until the architect was satis- fied that the work was properly done. MEURER v. KILGUS..... 175 7. Upon a bill for reforming and enforcing the specific per- formance of an agreement for the assignment of patents com- prising existing and future inventions, filed by the assignee of the original purchaser against one of the original vendors. and also the assignee of this vendor or assignor, which was demurred to generally for want of equity, and specially because the con- tract as sought to be reformed should not be enforced because it is void as against public policy and inequitable as being too general and unrestricted, the question in a court of equity comes finally to the issue, whether on the entire facts admitted or proved, the contract for the assignment of future inventions goes no further than a restraint fairly and reasonably necessary for the protection of the assignee, under all the circumstances of the case. CONS. RY. ELEC. L. & E. Co. v. U. S. L. & H. Co.
Where the bill, as in this case shows the payment to the original vendors of the sum of $1,995,000 for the inventions existing and future, the receipt of this sum as the consideration being admitted by the demurrer. it cannot as a matter of law, and in the absence of any qualifying facts, be said that an agreement for the transfer of future inventions of the same character, based on the immediate payment to an inventor of such an enormous consideration. is, on the face of it, illegal. Id.
The evidence in a suit to foreclose a mortgage held insuffi- cient to show a contract whereby the mortgagee agreed not to require interest on the debt. or that the possession taken by G.. was as agent for the mortgagee. JOHNSON v. ARGUESO.... 377 See CORPORATIONS, 1; DEEDS.
CORPORATE BONDHOLDERS-1. While cestuis que trustent are what are termed "necessary" parties to suits to foreclose a trust deed, failure to make them parties does not invalidate the foreclosure decree, so that the holder of corporate bonds was not entitled to have a decree foreclosing a trust deed on corporate property set aside because he was not a party to the proceedings, especially where it was not shown that any prop- erty subject to the lien was omitted from the foreclosure, or that his interest was not fully protected; the utmost which he could claim being that the foreclosure did not affect his rights. RING . NEW AUDITORIUM PIER Co.......
A party defendant to a mortgage forecolsure is not as a matter of law, entitled to notice of the time and place of the sale; he being required to use diligence to ascertain such facts.
CORPORATE BONDHOLDERS-Continued.
Even if a holder of corporate bonds was entitled to have a decree foreclosing a trust deed on corporate property set aside, because he was not a party to the proceedings, he was not entitled to such relief, where it appeared that he was advised before the sale by the trustee that the latter had been requested to foreclose, thus notifying him that a foreclosure was prob- able. and was afterwards notified that the sale had taken place, the amount realized, and his part thereof, but did not attempt for many months thereafter to have the foreclosure decree set aside, during which interval it had become impossible to restore the status existing before the sale because of the leasehold interest, upon which the mortgage was. having ex- pired shortly after the sale. and new leases to other parties having been made, and various stocks and bonds having been issued and new corporations formed to purchase the mortgaged property, and to guarantee the new bonds. Id....
A bondholder of a corporation was entitled to be made a party defendant to a suit to foreclose mortgages on corporate property. Id.
Where, though a corporate bondholder was given an oppor- tunity to enter into an arrangement with the other bondholders, for the purpose of selling mortgaged corporate property under foreclosure, buying it in, and accepting proportionate shares in a new mortgage of the same property, knowledge of the pendency of the suit was concealed from him by the trustee and other parties interested, and he was not notified thereof until after the sale, such bondholder was entitled to share in the new security created under such arrangement to the same extent as the other bondholders who were notified of the foreclosure pro- ceedings and made defendants therein, upon paying his propor- tionate share of the expense of the scheme to substitute the securities. Id.
6. The fact that such bondholder did not institute suit for such relief for many months after the foreclosure sale will not bar his right to relief. where no one has in the meantime changed his position, and no rights of others have been affected by his delay.
7. If other corporate bondholders and the trustee under corpo- rate mortgages fraudulently conspired together to defraud another bondholder of his rights under the mortgage, by having it foreclosed without notice to him, and without making him a party to the foreclosure proceedings under a scheme to buy in the property at the foreclosure sale and to create a new security and issue new bonds, such bondholder will be entitled to equi- table relief to protect his right in the new securities created. Id.. 422
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