732 ARTICLE 21

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. Eshelinan, 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 mortgagor
independent of the question of actual or intentional fraud; the assignee of the mort-
gage 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. Pur-
pose 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.

Where mortgage stated the consideration to be loan to persons signing same, when
in fact no such loan was ever made or contemplated, held that affidavit by mortgagee
was ineffective and the mortgage invalid as against subsequent mechanics' liens though
valid as to money actually advanced thereunder and used in the purchase and improve-
ment of the property as against judgment against borrower prior to his purchase of
property. Groh v. Cohen, 158 Md. 638.

Director of bank is not officer authorized to make affidavit within meaning of this
section. Jackson v. County Trust Co., Daily Record, May 23, 1939.

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. Castleburg,
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. 12. Tolson v. Williams, 136 Md. 613, 615.

Generally.

A deed held to be a mortgage within the meaning of this section. The sections rela-
tive 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. Holliday, 9 Md. 499;
Charles v. Clagett, 3 Md. 82.

This section, and sec. 33, and art. 16, sec. 36, are for the protection of creditors be-
coming such after the date of mortgages either unrecorded or defectively executed. 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; Kinsey v. Drury, 146 Md. 231. See notes to secs. 22 and 23.

Cited in In Re Universal Storage & Transfer Co., 4 F. Supp. 425.

See secs. 35 and 54 and notes.

An. Code, 1924, sec. 34. 1912, sec. 33. 1904, sec. 31. 1888, sec. 31. 1856,' ch. 113.

35. 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
made by an agent, he shall, in addition to the affidavit above mentioned,
make affidavit, to be endorsed upon the mortgage, that he is agent of the
mortgagee or mortgagees, or some one of them; which affidavit shall be
sufficient proof of such agency; and the president, or other officer of a cor-
poration, or the executor of the mortgagee may make such affidavit.

This section does not require an officer of a corporate mortgagee to make oath that
he is agent of the mortgagee. If the affidavit does not state that the affiant is an officer