On appeal from the Superior Court, Appellate Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- Justice Heher. The opinion of the court was delivered by Wachenfeld, J.
The appellant was indicted and convicted for false swearing under R.S. 2:157-4. The judgment was unanimously affirmed in the Appellate Division and we granted certification on a petition.
Albert Siegler intended to sell a certain piece of property in Linden, New Jersey. For that purpose he entered into a written contract on August 24, 1950 with Mr. and Mrs. Dunay, agreeing to convey the property in question free of all encumbrances for the sum of $14,000, to be paid upon various stages of construction of the house to be erected thereon. The purchasers paid on account $10,000 and through the appellant made an application for a $4,000 mortgage loan to the First Federal Savings & Loan Association of Montclair.
Subsequently, on January 26, 1951, Siegler executed and delivered to the same title company a bond secured by a
mortgage for $9,000 on the premises in question. At the request of the mortgagee, Siegler executed at the closing an affidavit of title which contained no reference to the contract made with the Dunays, although it was then an outstanding contractual obligation.
The State on its case proved the appellant signed an affidavit of title in the presence of the title closing attorney, who subscribed his name as the officer taking the oath, which contained, amongst other things, the following:
"Albert Siegler, being duly sworn, says * * * and that no person has any contract for the purchase of, or claim to or against, said premises, except as hereinafter stated; and that the same are now free and clear of all taxes, encumbrances or liens by mortgage, decree, judgment, or by statute, or by virtue of any proceeding in any Court, or filed in the office of the clerk of any County or Court in this state, and of all other liens of every nature or description, EXCEPTING --"
After the word "excepting" a large space appears in which nothing was written.
The closing paragraph recites:
"Deponent makes this affidavit to induce First Fed. Sav. & Loan Asso. of Mtc to accept a mortgage of said premises, and pay the consideration therefor, knowing that it relies upon ...