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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