
    Strafford,
    Jan. 5, 1943.
    No. 3384.
    General Motors Acceptance Corporation v. Thelma G. Lantz, Adm’x.
    
    
      Cooper, Hall & Grimes, for the plaintiff.
    
      William G. McCarthy, for the defendant.
   Per Curiam.

Available remedy by suit upon the bond results in impropriety of the procedure of a petition for a declaratory judgment. Lisbon &c. District v. Lisbon, 85 N. H. 173; Baker v. Goodale,, 85 N. H. 561; Reynolds v. Chase, 87 N. H. 227, 229; Young v. Bridges, 86 N. H. 135, 136; Coleman v. School District, 87 N. H. 465, 472. However, the parties have agreed that “the pleadings may be deemed such form of action as will determine the issues.” Accordingly, the petition becomes amended by an action of debt on the bond brought by the defendant against the plaintiff.

The statute (P. L., c. 216, s. 27) requires that the lien of a conditional sale agreement, to be valid against attaching'creditors without actual notice, must be established by a memorandum signed by the owner. As another requirement (lb., s. 28), an affidavit of the honesty of the lien must be signed by both the owner and lienholder.

It has been held that subscription to the oath by both parties is indispensable to preserve the lien against attaching creditors without actual notice. Churchill v. Demeritt, 71 N. H. 110; General Motors &c. Corp. v. Company, 84 N. H. 348, 349.

The requirement that the memorandum of sale be signed by the owner is equally demanded. “. . . the statute . . . must in general be strictly complied with” (Churchill v. Demeritt, supra, 111), “for it is the intent of the statute ‘that an inspection of the record should inform all parties whether the memorandum ‘had been legally executed’” (General Motors &c. Corp. v. Company, supra, 349). Legal execution of the memorandum is such as the statute prescribes to make it legal. The plaintiff was chargeable with notice of the law when it took its assignment from the lienholder and hence with notice that the memorandum was executed without compliance with the law.

Debt on the bond may be maintained.

Case discharged.  