10 N.J.Misc. 397. This combination is permitted when the affidavit expressly refers to the mortgage and even when the reference is impliedly made; e.g., when the affidavit refers to the "foregoing mortgage" or "said mortgage". W. & B. Douglass v. Williams, N.J.Ch., 48 A. 222; Green v. McCrane, 55 N.J.Eq. 436, 37 A. 318.
The judgment creditor herein seeks to differentiate the above cases from the instant case and confine the application of their holding to cases involving ambiguous affidavits rather than those involving incomplete ones.
The purpose of the statutory requirement, supra, was stated in the case of Graham Button Co. v. Spielmann, 50 N.J.Eq. 120, 122, 24 A. 571, 572, as follows: "The legislative purpose in the enactment of that statute was held to be to compel the mortgagee to commit himself to a statement or disclosure of his debt or claim, under oath, when he made his mortgage a matter of public record, sufficiently precise and explicit to afford the creditors of the mortgagor, in case fraud was suspected, a fair opportunity to ascertain, by judicial investigation or otherwise, whether the mortgage was an honest security or a mere fraudulent cover".
Fraud is not alleged in the case at bar, and, thereofre, "slight circumstances will justify a reading of the affidavit and the mortgage as one, and the court should search diligently for a means to uphold the agreement of the parties". Patrisco v. Nolan's Point Amusement Co., 159 A. 620, 622, 11 N.J.Misc. 397, 401. The question then is whether this combination constitutes a substantial compliance with the statute. American Soda Fountain Co. v. Stolzenbach, 75 N.J.L. 721, 68 A. 1078, 16 L.R.A., N.S., 703, 127 Am.St.Rep. 822.
The condition of the mortgage discloses that the obligation of the mortgagor was to pay the sum of $990.13 plus interest evidenced by a promissory note. This alone would be insufficient because it reveals only the mortgagor's obligation and not the consideration extending from the mortgagee to the mortgagor. Collerd v. Tully, 77 N.J.Eq. 439, 77 A. 1079, affirmed 78 N.L.Eq. 557, 80 A. 491, Ann.Cas.1912C, 78; Ehler v. Turner, 35 N.J.Eq. 68. However, the affidavit states that the consideration extending from the mortgagee to the mortgagor is evidenced by a note and that such note represents money loaned and advanced by the mortgagee. The note referred to in the affidavit and the note referred to in the condition of the mortgage must be the same, since no claim to the contrary is asserted. We, therefore, may interpolate in the affidavit that the consideration extended by the mortgagee is a loan of $990.13.
The remaining objection is directed toward the failure of the affidavit of consideration to disclose that part of the consideration of the mortgage was a sum due on an earlier mortgage and forbearance from foreclosure of that mortgage. It appears from the affidavit and mortgage, read together, that the consideration was a loan of $990.13, but the testimony discloses that that sum was not lent at the time of the later mortgage, because a sum in the amount of approximately $300 was withheld on account of the prior mortgage. Omission of this detail of the transaction is immaterial. McKesson-Roeber-Kuebler v. Richter, 112 N.J.L. 339, 170 A. 636; Lessler v. Paterson Nat. Bank, 97 N.J.Eq. 396, 128 A. 800; Sadler v. Banaff, 85 N.J.Eq. 335, 96 A. 361. The judgment creditor herein, however, contends that in these cases the former chattel mortgage was cancelled while in the present case it was not. We agree with the Referee that this distinction is not controlling because the debt can be collected only once -- "the payment of the second mortgage will satisfy the first so it would seem to make no difference whether or not the first mortgage was actually cancelled on the record".
The affidavit of consideration constitutes a substantial compliance with the statute. We, therefore, conclude that the petition to review the order of the Referee should be dismissed.
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