CONVEYANCING. 609

Affidavit as to consideration.

An affidavit held insufficient. It is essential that the affidavit should be endorsed
on the mortgage and recorded with it. The fact that the oath was taken cannot be
established otherwise. Reiff v. Eshleman, 52 Md. 587.

Whether the affidavit is made or not is immaterial as between the parties to
the mortgage, and those claiming through or under the mortgagee; contra as to
subsequent creditors and purchasers. Hartsock v. Russell, 52 Md. 627; Cockey v.
Milne, 16 Md. 207.

Although the affidavit required by this section is wanting, or defective, if the
lessee has actual notice of the mortgage, he takes the property subject thereto.
Russum v. Wanser, 53 Md. 98; Reiff v. Eshelman, 52 Md. 588; Johnson v. Canby,
29 Md. 220; Phillips v. Pearson, 27 Md. 257.

Affidavit held to be bona fide and valid, notwithstanding the fact that a portion
of mortgage debt was usurious interest. Smith v. Myers, 41 Md. 432.

Affidavit held to be in substantial compliance with this section, and made before
a proper officer. Stanhope v. Dodge, 52 Md. 490.

A mortgage held void under this section as against the creditors of the mort-
gagor independent of the question of actual or intentional fraud; the assignee of
the mortgage stands in no better position than the assignor. A deed held to be
strictly and technically a mortgage within the meaning of this section and void as
to all persons except the parties; nor can the mortgage be upheld as a mortgage
of indemnity. Purpose of this section. The consideration mentioned in a deed if
false could not be bona fide, nor if untrue could it be therein set forth in good
faith. Ressmyer v. Norwood, 117 Md. 330.

Affidavit as to tax.

Where there is no interest provided for in the mortgage, the second oath need
not be made. Interest, however, cannot be covered up as principal. Salabes v.
Castelburg, 98 Md. 655.

Although a mortgage is first recorded without the tax affidavit, it is good as
between the parties. See notes to art. 66, sec. 11. Tolson v. Williams, 136 Md.
613, 615.

Generally.

A deed held to be a mortgage within the meaning of this section. The sections
relative to execution and recording, refer to a technical mortgage and not to deeds
of trust. Stanhope v. Dodge, 52 Md. 490; Shidy v. Cutter, 54 Md. 677. And see
Snowden v. Pitcher, 45 Md. 265; Carson v. Phelps, 40 Md. 96; Stockett v. Holli-
day, 9 Md. 499; Charles v. Clagett, 3 Md. 82.

This section, and sec. 32, and art. 16, sec. 35, are for the protection of creditors
becoming such after the date of mortgages either unrecorded or defectively exe-
cuted. The trustee in bankruptcy of a mortgagor may have the title to property
covered by a defectively executed or recorded mortgage declared to be in him
Davis v. Harlow, 130 Md. 166.

Where the mortgage has been duly sworn to and recorded, it has the same effect
as if the mortgagee had been put in possession of the mortgaged property. Cahoon
v. Miers, 67 Md. 579.

Purpose of this section—substantial compliance sufficient. Marlow v. McCubbin,
40 Md. 136; Nelson v. Hagerstown Bank, 27 Md. 73; Phillips v. Pearson, 27 Md.
256; Cockey v. Milne, 16 Md. 207. Cf. Denton v. Griffith, 17 Md. 304.

As against creditors and purchasers, or assignees of the mortgagor seeking to
redeem, the English doctrine of tacking or consolidation is inconsistent with this
section. Brown v. Stewart, 56 Md. 431.

Cited but not construed in Brown v. Freestone, etc., Co., 55 Md. 551; Van
Riswick v. Goodhue, 50 Md. 61.

See secs. 34 and 53 and notes.

See art. 81, sec. 201.

An. Code, sec. 33. 1904, sec. 31. 1888, sec. 31. 1856, ch. 113.

34. The affidavit required by the preceding section may be made by
one of several mortgagees, and shall have the same effect as if made by all;
or the said affidavit may be made by any agent of a mortgagee; and when
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