
    Benedict v. Peters et al.
    
      Chattel mortgage — Statement of mortgagee — Must be authenticated by signature of officer administering oath — Section 4154, Revised Statutes.
    
    The statement under oath required of the mortgagee under section 4154, Revised Statutes, of the amount of his claim and that it is just and unpaid, must be made on the mortgage and authenticated by the signature of the officer administering the oath ; and where this is not done the mortgage is of no effect as a lien against a creditor of the mortgagor, who has caused an execution to be levied upon the property.
    (Decided June 21, 1898.)
    Error to the Circuit Court of Franklin county.
    
      D. T. Ramsey and J. V. lee, for plaintiff in error.
    Section 4154, Revised Statutes, provides that the mortgagee, his agent or attorney, shall, before the instrument is filed, state thereon, under oath, the amount of the claim, etc.; and if given to indemnify the mortgagee against a liability as surety for the mortgager, such sworn statement shall set forth such liability and that the instrument was taken in good faith to indemnify against loss that may result therefrom.
    The affidavit seems to be properly filled out and is signed by one of the mortgagees. But it does not show on its face that the statement was sworn to, and it is not on its face a sworn statement or a statement under oath. The recital in the affidavit, “David B. Peters being sworn,” has no effect, because he could not swear himself and he could not certify that he was sworn. That must be done by an officer authorized to administer oaths. We contend that the statement on the mortgage is not prima facie a statement under oath, or “sworn statement,” commonly called an affidavit, that it does not come within the terms of the statute, and that it is void under the statute as to creditors of the mortgagor. Section 4150.
    An affidavit on a mortgage, when properly signed and certified by a notary or other officer, is only prima facie evidence of the facts certified to by the officer. But it is sufficient evidence until it is impeached for fraud, or by showing that it was not in fact sworn to, or that the party who certified was not authorized to administer oaths. Ashley v. Wright, 19 Ohio St., 291; Gambrinus Stock Go. v. Weber, 41 Ohio St., 689.
    The question of “notice to the world” is the question involved in this case and the only question.
    The mortgage would be good between the parties to it without a sworn statement and without being filed.'
    
      The sworn statement required by section 4154 is an affidavit. Ga/rdiner v. Parmalee, 31 Ohio St., 551; Blandy v. Benedict, 42 Ohio St., 297.
    An affidavit is a written declaration under oath. Section 5262, Revised Statutes. And must be authenticated in the same way as depositions. Section 5264.
    So, at common law an affidavit must be sworn before and authenticated by an officer authorized to administer oaths. 1 Am. & Eng. Ency. of Law, (2d Ed.) pages 909, 910 and notes.
    An insufficient affidavit can not be cured or explained by extrinsic evidence. Hanes v. Tiffany, 25 Ohio St., 549.
    Where the affidavit is insufficient, the mortgage is void as to creditors.
    A prima facie ease or evidence is that which is received or continues until the contrary is shown. 19 Am. & Eng. Ency. of Law, 83.
    The defendant offered no evidence upon the mortgag’e or the statement. The only question raised by him was as to the validity of the statement prima facie. If it was valid prima facie, no oral evidence should have been introduced.
    If the notary had properly certified the affidavit, it would not have been necessary for the plaintiff to prove the notary’s signature or the fact that he administered the oath. 16 Am. & Eng. Ency. of Law, 775.
    A notary is a public officer. There is a presumption in favor of the validity of official acts. 19 Am. & Eng. Ency. of Law, 43.
    Our contention is that if the statement had been properly certified by the notary, the statement would have been prima facie regular and valid, and no extrinsic evidence would have been necessary or proper. In that case the burden of proof would have been on the defendant to impeach the statement and the certificate.
    The introduction of oral evidence was an admission that the statement -w&s prima faoie insufficient.
    Such being the case, it was void as against the defendant below, who is a judgment creditor.
    
      Dyer <& Williams, for defendants in error.
    Two questions are presented by the record in this case for the determination of this court:
    First. Was the statement, upon oath, of the mortgagee, as endorsed upon the chattel mortgage in controversy herein so fatally defective as to invalidate the mortgage as against creditors?
    Second. Did the trial court err in admitting parol evidence to prove that such statement had in fact been sworn to by'the mortgagee?
    It is not contended that the affidavit is insufficient under the statute nor irregular in any particular other than the notary before whom the affidavit was taken, neglected to sign his name to the jurat. Section 4154, Revised Statutes.
    The mortgagee in the body of the statement which we are considering, and which he signed, recites that he was duly sworn. Under his signature is written, “Sworn to before me and signed in my presence this first day of November, 1894.”
    It also appears from the evidence, that the notary put his seal on the instrument. On its face, therefore, it purports to be a sworn statement, and is all the statute requires. The statute does not require that the statement should be certified by the officer administering the oath, although, no doubt, it is desirable in practice that this should always be done. Ashley v. Wright, 19 Ohio St., 291; Ihe Gambrinus Stock Company v. Weber et al., 41 Ohio St., 689.
    Certainly, every purpose which the legislature intended should be accomplished by the filing of this statement for the information of third persons dealing with the property conveyed by the mortgage is accomplished by the statement filed in this case.
    There is nothing in the mere absence of the notarial signature which would deceive or mislead a creditor as to the character of the claim of the mortgagee or as to the amount of his claim.
    We believe the conclusions of our Supreme Court in the two cases above cited are fully sustained by reason and by the authorities elsewhere. In 1 Enc. Plead. & Pr., page 311, the full requisites of an affidavit are stated to be: (a) title, (b) venue, (c) signature, (d) jurat, and (e) authentication.
    The oath challenged herein contains all these in proper form, except the authentication. 1 Enc. Plead. & Pr., 317; Kruse v. Wilson, 79 111., 233; Cook v. Jenkins db Co., 30 Iowa, 452; Stout v. Folger, 34 Iowa, 71; Jadkman v. Gloucester, 143 Mass., 380; English v. Wall, 12 Rob. (La.), 132; Fortenheim v. Claflin, 47 Ark., 49; Bergesch v. Keevil, 19 Mo., 127; McCartney v. The Branch Bank at Huntsville, 3 Ala., 709; Hyde v. Adams, 80 Ala., Ill; Wiley v. Bennett, 9 JBaxt. (Tenn.), 481; Borough of Pottsville v. Curry, 52 Pa. St., 443.
    The second question sought to be raised here is as to the alleged error of the trial court in permitting parol evidence to • go to the jury to prove that the mortgagee had in fact sworn to the statement endorsed on the back of the chattel mortgage. Certainly, under the ruling in Ashley v. Wright, supra, this evidence was property admitted. In the quotation already made from the opinion of the court in this case, we have found the court held that the absence of a notarial seal by way of authentication would thus throw the burden of proof upon the mortgagee. So, in this case, by a parity of reasoning, the absence of a notarial signature would throw upon the mortgagee the burden of proving that the statement had actually been sworn to, and of course, in order to sustain the burden of proof thus thrown upon him, it is competent for the mortgagee to show by extrinsic evidence the circumstances surrounding the execution of the document, and from this to show that it was in fact, under oath, as on its face it purported to be.
   Minshall, J.

Levi Benedict having obtained a judgment against Malón A. Peters before a justice of the peace, caused an execution to issue and be levied upon certain personal pi’operty of the debtor. Shortly afterwards David and Wilson Peters replevined the property from the constable, claiming it under a certain chattel mortgage that had been made to them by the debtor to secure an indebtedness to themselves. Benedict was duty substituted for the constable, and the case was tried on an answer denying the averments of the petition. The finding was for the plaintiff and damages one cent, and judgment rendered on the verdict for the plaintiff, after a motion for a new trial had been made*and overruled. A bill of exceptions was taken and made a part of the record setting forth all the evidence. The only question arising upon the record is as to the validity of the chattel mortgage under which the plaintiffs claimed the property as against the levy made upon the property .by Benedict under his judgment, the levy being subsequent in time to the mortgage. The mortgage was regular in all respects, except that the statement thereon under oath, required by section 4154, Revised Statutes, to be made by the mortgagee, his agent or attorney, as to the amount of his claim and that it is just and unpaid, was not certified to by the officer as having been administered by him, that is his signature was omitted. From aught that appeared the affidavit may simply have been written on the mortgage, signed b37' the mortgagee, with the usual jurat in blank, and without its having been sworn to by him before any officer. Evidence was offered and received against the objection of the defendant, and to which he excepted at the time, that the oath had in fact been made before the notary, but he had inadvertently omitted to sign his name to the certificate. And the question now arises whether this omission invalidates the mortgage as against a judgment creditor of the mortgagor, who has levied on the property. It is well settled that if the mortgage is defective as a lien against third persons, it is of no avail against the subsequent levy of an execution by a creditor, without regard to his knowledge of the improperly filed mortgage. Houk v. Condon, 40 Ohio St., 569. The requirement of good faith to acquire a preference over it, applies only to subsequent purchasers and mortgagees. Instruments whereb3T one creditor is to obtain a lien upon the property of a debtor as against others, must be construed strictly in the observance of those requirements necessary to the creation of the lien, and particularly is this so as to those things required as notice to third persons of the existence of the lien. The mischief intended to be remedied by the provisions of section 4154, was the giving of colorable mortgages by debtors for the purpose of covering up their property and hindering and delaying honest creditors in the pursuit of their legal remedies against them. The statement required by this section to be made under oath by the mortgagee on the mortgage, as to the amount of his claim and that it is just and unpaid, is vital to the spirit of the statute in the light of the mischief it was intended to prevent.- It subjects the conscience of the party to the severe test of an oath as to the amount and justice of his claim to be secured by the mortgage. It is however argued with a g'ood deal of force, that if the oath has been in fact taken,, the mischief will be as effectually avoided as if the fact were certified on the mortgage by the officer administering it. This would certainly be so in the cases where it is shown to have been done by parol testimony. But would this be so in all cases? Certainly not in those cases where the oath has not been administered; and as this cannot be known from the mortgage itself, it certainly opens the door to the making and filing of fraudulent mortgages. Such mortgages may be made and filed, and whilst the fraud may or may not be discovered and exposed by the creditors, it will serve for the time being, or may be for all time, the fraudulent purpose of the parties. In such way the creditor may be hindered and delayed by the fraudulent practice, and no other consequences will result to the parties than the exposure of their fraud and the loss of what was to be gained thereby. But where the oath is in fact taken and certified by the officer on the mortgage, the affiant may, in addition to the exposure of his fraud, be prosecuted for perjury. I am not to be understood as implying that where a false oath has been made no prosecution for perjury could be had in the absence of a certificate signed by the officer, the point is, that where the fact may be shown by parol, a certificate in due form may be fraudulently endorsed on the mortgage, and the taking of the 'oath omitted, for the purpose of hindering and delaying creditors, with no other consequences to the party than the exposure of his fraud. In this view of the case we think th¿ court erred in permitting the plaintiff to show by parol that the oath had in fact been taken, though there was no certificate signed by the officer administering it to that effect on the mortgage. The mortgage as against the judgment creditor who had levied on the property was of no effect (Houk v. Condon, supra) and judgment should have been rendered in his favor. Creditors examining the records for such liens, ,are not required to go beyond the record for the purpose of learning whether an instrument on which there is no duly certified sworn statement required by the statute, can be shown to have been properly executed in this regard. All that is required to make it a mortgage as against creditors must appear upon the instrument filed as such. It cannot be helped out by parol. Hanes v. Tiffany, 25 Ohio St., 549; Blandy v. Benedict, 42 Ohio St., 295.

We do not think that the cases of Ashley v. Wright, 19 Ohio St., 291 and Gambrinus Stock Co. v. Weber, 41 Ohio St., 689, are opposed to this view. In Ashley v. Wright, the instrument showed on its face that the statement had been properly sworn to. The notary administering- the oath had signed the certificate, but had omitted his seal. The court held that the attaching of the seal was not necessary — the seal being only required in the authentication of purely notarial acts, as in the protesting of commercial paper for dishonor. In Gambrinus Stock Co. v. Weber, the statement was not signed by the mortgagee. This the court held is not necessary, where, as in that case, the taking of the. oath was duly authenticated by the notary.

Quite a numbér of cases are cited where, in attachment proceedings, affidavits on which writs of attachment were issued, were not authenticated by the officer administering the oath, and the'omission was not regarded as fatal to the affidavit, the evidence of the fact being- supplied by parol. We do not regard these cases as of controlling effect here. An affidavit in an attachment proceeding is given for the protection of the debtor. And if it has been in fact taken, it affords the same protection to him as if duly certified by the-officer administering- it. The lien of the attachment does not depend upon the sufficiency of the affidavit, but upon the taking- of the property under the writ; and if the defects in the affidavit are waived by the debtor, third persons cannot take advantage of them. Nor is the affidavit designed as notice to third persons of the existence of the lien, that is accomplished by the seizure of the property. For these reasons the cases cited, and similar ones, are not relative to the question here.

The general rule is that an affidavit must appear on its face to have been taken before the proper officer, and in compliance with all legal requisitions. Giauq. Notary’s Man., section 32. A paper purporting to be an affidavit, but not to have been sworn to before an officer, is not an affidavit. Morris v. State, 2 Tex., 502; Cantwell v. State, 27 Ind., 505; Bank v. Hinchcliffe, 4 Ark., 444; Giauq. Notary’s Man., section 34. In the latter case, the sufficiency of an affidavit for an appeal was presented; and the court said: “In the transcript before us, the clerk has copied a writing’ purporting to be the affidavit of the attorney of the appellant, containing all the requisites prescribed by law, except the essential one that the individual purporting to make the affidavit, does not appear to have been sworn, or to have made the affidavit before any authority competent to take it. It is true that this statement appears immediately under the writing purporting to be an affidavit, “sworn to and subscribed in open court December 22,1841,” but this attestation is not subscribed or certified, either by the clerk, the judge or the court; and therefore it can only be regarded as the mere draft of an affidavit, never' sworn to by the person by whom it purports to have been made. And therefore as the record shows no affidavit, as required -by law, the appeal must be considered as having been illegally granted.” And, the same being true in this case, the mortgage relied on by the plaintiffs below, must be regarded inlaw as having no sworn statement upon it, required by statute to make it valid as against creditors.

Judgment of the owcuit court and of the common pleas, reversed, and cause remanded to the latter court for further proceedings.  