the law required such deeds to be either acknowledged or proved by three witnesses.

In Morris v. Bank of Attalla, 153 Ala. 352, 45 South. 219, the fact that one of the subscribing witnesses was a stockholder in the mortgagee corporation did not affect the validity of the mortgage.

A mortgage covering neat cattle is not affected by the fact that it is not witnessed by two residents of the county as provided in Compiled Laws, section 75, as that section applies to sales and not to mortgages: Kitchen v. Schuster, 14 N. M. 164, 89 Pac. 261.

As between the parties themselves, these requirements of the various statutes are not operative, and the mortgage is valid, irrespective of the observance of the formalities: Smith v. Camp, 84 Ga. 117, 10 S. E. 539; Strahorn-Hutton-Evans Commission Co. v. Florer, 7 Okl. 499, 54 Pac. 710; Walter A. Wood Mowing & Reaping Mach. Co. v. Lee, 4 S. D. 495, 57 N. W. 238.

V. Acknowledgment.

The same rule as to the validity of irregularly attested documents between the parties applies to unacknowledged mortgages being good inter partes: Main v. Alexander, 9 Ark. 112, 47 Am. Dec. 732; Crane v. Chandler, 5 Colo. 21; Forest v. Tinkham, 29 Ill. 141; Springer v. Lipsis, 209 Ill. 261, 70 N. E. 641; Waterhouse v. Black, 87 Iowa, 317, 54 N. W. 342; Benson Bank v. Hove, 45 Minn. 40, 47 N. W. 449; McFarlan Carriage Co. v. Wells, 99 Mo. App. 641, 74 S. W. 878; Brown v. Koenig, 99 Mo. App. 653, 74 S. W. 407; Kitchen v. Schuster, 14 N. M. 164, 89 Pac. 261. And the converse, that they are invalid as against third persons has been directly held in Crane v. Chandler, 5 Colo. 21; Wilcox v. Jackson, 7 Colo. 521, 4 Pac. 966; Edinger v. Grace, 8 Colo. App. 21, 44 Pac. 855; Forest v. Tinkham, 29 Ill. 141; Farson v. Gilbert, 114 Ill. App. 17; Sanders v. Pepoon, 4 Fla. 465; St. Paul Title Ins. & Trust Co. v. Berkey, 52 Minn. 497, 55 N. W. 60. In Alabama no acknowledgment at all is necessary and the registration is deemed notice: Bickley v. Keenan, 60 Ala. 293. In California the case of Talcott v. Hurbert, 143 Cal. 4, 76 Pac. 647, was decided on the common sense lines of the security being good between the parties and their privies. In that case the mortgage, properly verified and recorded, but without acknowledgment, while void as to creditors, was held not void between the parties, nor as to a purchaser with notice, nor as to any parties not included in those named in section 2957 of the Civil Code. The court held that the words of the statute could not be extended by implication to other classes of persons than those named. In Colorado and Nebraska it has been held that an unacknowledged chattel mortgage cannot be received in evidence: Machette v. Wanless, 1 Colo. 225; Hooker v. Hammill, 7 Neb. 231. In Illinois while it has been held that the statute as to the acknowledgment of such mortgages must be strictly construed as being in derogation of the common law (Porter v. Dement, 35 Ill. 478), the necessity for acknowledgment has been declared, notwithstanding the recording of the mortgage: Koplin v. Anderson, 88 Ill. 120; and the case of People v. Hamilton, 17 Ill. App. 599, goes the length of saying that actual notice will not supply the place of acknowledgment or record as against subsequent purchasers and encumbrancers. In Iowa, the mortgage unacknowledged is valid against those having notice of it: Waterhouse v. Black, 87 Iowa, 317,

54 N. W. 342. In Texas prior to the act of March 23, 1891, chapter 35, acknowledgment was unnecessary when the original was filed: Hicks v. Ross, 71 Tex. 358, 9 S. W. 315; Chator v. Brunswick-BalkeCollender Co., 71 Tex. 588, 10 S. W. 1050. Since that act was passed, however, a copy can be filed only when the original has been witnessed by two subscribing witnesses or acknowledged or proven for record and certified as required in case of other instruments for the purpose of being recorded. Instruments not so acknowledged or not being proved as at common law, cannot be admitted in evidence: Baxter v. Howell, 7 Tex. Civ. App. 198, 26 S. W. 453. In Washington, where 1 Hill's Code, section 1648, made a chattel mortgage void as to creditors and subsequent purchasers for value and in good faith, unless acknowledged and recorded and accompanied by the statutory affidavit, the court in Mendenhall v. Kratz, 14 Wash. 453, 44 Pac. 872, held that the mere fact that a chattel mortgage was not verified or recorded, would not render it invalid as to a purchaser, unless for value and in good faith; and that no one can so become a purchaser or an encumbrancer of property in good faith if he has notice of a pre-existing mortgage, although such mortgage may not be recorded or verified in accordance with the statute. Roy & Co. v. Scott, Hartley & Co., 11 Wash. 399, 39 Pac. 679, was the case followed in that opinion, and it, in turn, was followed by Hicks v. National S. Co., 50 Wash. 16, 126 Am. St. Rep. 883, 96 Pac. 515. This latter case brings the decisions almost up to date in deciding that a bill of sale must be acknowledged under section 4558, Ballinger's Annotated Codes, or it will be void as against creditors of the vendor or subsequent purchasers and encumbrancers for value and in good faith; and that a chattel mortgage or bill of sale is good as between the parties, though not acknowledged or accompanied by the affidavit of good faith as required by the section referred to, and it further draws marked attention to the broad distinction which the statute creates between creditors and subsequent purchasers or encumbrancers. In Scruggs v. Burruss, 25 W. Va. 670, in the case of a deed of trust on personal property to secure debts, partaking of the nature of a chattel mortgage, where the interests of creditors and subsequent purchasers for valuable consideration without notice (the only classes mentioned in section 5, chapter 74 of the code) were not involved, and the deed was imperfectly acknowledged, the court held that it was immaterial whether it was recorded or not, as the failure to do so would only render it void as to the class of persons shown to be ronexistent-there being no creditors to suffer by the deed or the upholding of its imperfect execution. In Kitchen v. Schuster, 14 N. M. 164, 89 Pac. 261, the court gave a clear sheet as to all imperfections being harmless between the parties: "We think, therefore, that the failure to record was not fatal to the instrument. Nor was the absence of an acknowledgment. The absence of an acknowledgment does not, as between the parties or those with actual notice, affect the validity of deeds, nor bills of sale, nor chattel mortgages. Neither is the instrument invalid because not witnessed by two residents of the county, as required in Compiled Laws, section 75. This latter does not apply to chattel mortgages, but to absolute sales. This being so, the lack of witnesses is immaterial. We find nothing in Gale v. Salas, 11 N. M. 211, 66 Pac. 520, or Territory v. Claypool, 11 N. M. 568, 71 Pac. 463, contrary to these views."

VI. Affixing Revenue Stamps.

Except the omission to stamp the mortgage was fraudulent and for the purpose of evading revenue, the courts properly looked with a forgiving eye on the failure to comply with the statutory requirements in that behalf. When the failure to stamp arose from the fact that all the parties-mortgagor, mortgagee and the scrivener employed-believed it was not necessary to affix a revenue stamp thereto in view of the fact that each of the twelve notes secured by the mortgage was stamped, and the court found that there was no intention on the part of either to defraud the revenue, or in any manner violate the revenue law of the United States, the court, on the authority of Craig v. Dimock, 47 Ill. 308, United States Express Co. v. Haines, 48 Ill. 248, Bunker v. Green, 48 Ill. 243, Green v. Holway, 101 Mass. 243, 3 Am. Rep. 339, Knox v. Rossi, 25 Nev. 96, 83 Am. St. Rep. 566, 57 Pac. 179, 48 L. R. A. 305, McGovern v. Hoesback, 53 Pa. 176, Campbell v. Wilcox, 10 Wall. 421, 19 L. ed. 973, Dowell v. Applegate, 7 Saw. 232, 239, 7 Fed. 81, 8 Fed. 698, came to the conclusion that the mortgage was valid and binding upon the parties in the state courts, notwithstanding the omission to stamp it. Practically that was the decision arrived at in the old case of Brown v. Thompson, 59 Me. 372, wherein it was held that unless it affirmatively appeared that the omission of the stamp was the result of an attempt to evade the statute the mortgage would not be declared "invalid and of no effect."

VII. Affidavit Verifying Mortgage.

It will have been observed that the case of People v. Burns, 161 Mich. 169, ante, p. 466, 125 N. W. 740, was decided mainly upon the issue of a proper recordation of the mortgage by having it accompanied with an affidavit of verification. The usual statutory provision is that the mortgagor named in the mortgage, or conveyance intended to operate as a mortgage, or some person for him, having knowledge of the facts, shall, before the filing of the mortgage, make and annex thereto an affidavit setting forth that the consideration of said instrument was actual and adequate, and that the same was given in good faith for the purposes in such instrument set forth, and that no officer shall receive such instrument or file the same in his office until such affidavit is made and annexed thereto. This is substantially the statutory requirement; the deviations from it are not material, the object of all the enactments being that the mortgage shall be verified by the mortgagors or some one knowing the facts, and that the contents of the mortgage shall be authenticated, having in view the possibility of liens and other encumbrances. In some states an affidavit is to be made by the mortgagee, and in others by all the parties to the mortgage. Taking into our consideration that the highly technical definition of an affidavit as given in the principal case, ante, p. 466, that an affidavit is a sworn statement reduced to writing and evidenced by the fact that it has been subscribed and sworn to before an officer having authority to administer oaths, it need cause little surprise that a very large number of cases on the validity of chattel mortgages has been determined by the proper form or inaccuracy of the affidavit, as the case may be. All other things being correct, a bad affidavit vitiates the mortgage as against creditors and subsequent encumbrancers.

8. Omission of Affidavit.-If the affidavit is absent, the same result will ensue: Milburn Mfg. Co. v. Johnson, 9 Mont. 537, 24 Pac. 17; First Nat. Bank v. Beley, 32 Mont. 291, 80 Pac. 256; Field v. Silo, 44 N. J. L. 355; Hall v. Nash, 58 N. J. Eq. 554, 43 Atl. 683; Marsden v. Cornell, 2 Hun, 449; Hanes v. Tiffany, 25 Ohio St. 549; Blandy v. Benedict, 42 Ohio St. 295; Benedict v. Peters, 58 Ohio St. 527, 51 N. E. 37; Manhattan Trust Co. v. Seattle Coal & Iron Co., 16 Wash. 499, 48 Pac. 333, 737; Carstens v. Moyer, 22 Wash. 61, 60 Pac. 51. The omission of the affidavit, however, has been held not to avail in favor of one who had knowledge that the mortgage was made for a good and valid consideration: Roberts v. Crawford, 58 N. H. 499.

Where the mortgage was recorded without the affidavit, and the affidavit was subsequently filed, the defect was not cured and the mortgage was invalid against creditors of the mortgagor who had proceeded to attach the property in the hands of the mortgagor. The only cure would have been the re-recordation of the instrument in accordance with the statute: Alferitz v. Scott, 130 Cal. 474, 62 Pac. 735.

As between the parties themselves, as we have already pointed out, such defects are immaterial: Marchand v. Ronaghan, 9 Idaho, 95, 72 Pac. 731; Wilson v. Lippincott (N. J. Ch.), 44 Atl. 989; Hicks w. National S. Co., 50 Wash. 16, 126 Am. St. Rep. 883, 96 Pac. 515.

In Thompson v. Fairbanks, 75 Vt. 361, 104 Am. St. Rep. 899, 56 Atl. 11 (which was affirmed 196 U. S. 516, 25 Sup. Ct. Rep. 306, 49 L. ed. 577), the mortgagee had elected to treat his mortgage as a common law, in lieu of statutory, security, and no affidavit was necessary, although there was an affidavit attached to the mortgage. "Some or all of the amount due from the mortgagor to the defendant for rent of buildings accrued after the giving of the mortgage, and the plaintiff contends that so much thereof as did thus accrue is not covered by the mortgage, because rent is not a 'contemplated loan and liability' within the meaning of that expression in the affidavit attached to the mortgage. But when the defendant is considered as standing upon a mortgage, at common law, no affidavit is necessary; and regarding the sufficiency of the description of the debts, obligations and undertakings intended to be secured thereby, the rules governing similar questions arising in connection with real estate mortgages are applicable. Under the holdings of this court in cases involving such mortgages, it is clear that the description is sufficient in this regard: McDaniels v. Colvin, 16 Vt. 300, 42 Am. Dec. 512; Seymour v. Darrow, 31 Vt. 122; Soule v. Albee, 31 Vt. 142."

b. Should an Affidavit be Subscribed by the Affiant. This question is suggested by the opinion in the principal case, ante, p. 466, and while there is some doubt about it, we should warn those who desire to use that form of declaration by no means to hazard an unsigned affidavit in any important matter. The question arose in Lutz v. Kinney, 23 Nev. 279, 46 Pac. 257. It appears that in the state of Nevada the statute relating to chattel mortgages does not call for the affidavit annexed to a chattel mortgage to be subscribed by the affiant, and the court accordingly upheld a mortgage verified in that style. It is true there is some authority for the proposition, but it should be born in mind that affidavits from time immemorial have been signed, and a search among the authorities will show that

in nearly every instance when the correctness of the practice has been impugned, it has been to cover some act of carelessness on the part of the affiant or his scrivener. Blackstone defines an affidavit as "a voluntary oath before some judge or officer of the court, to evince the truth of certain facts": 3 Blackstone's Commentaries, 304. The affidavit must be "made"; that is, the affiant must swear to the facts stated, and they must be in writing. It is then his affidavit, and as evidence that it was sworn to by him, whose oath it purports to be, it must be certified by the officer before whom it was taken, which certificate is commonly called the "jurat" and must be signed by such officer: Gill v. Ward, 23 Ark. 16. In Alford v. McCormac, 90 N. C. 151, we find: “The signing or subscribing of the name of the affiant to the writing is not generally essential to its validity; it is not, unless some statutory regulation requires it. . . . . The signature of an affiant can in no case add to or give force to what is sworn, and what is sworn is made to appear authoritatively by the certificate of the officer. This seems to us to be a reasonable view of the principal requisites of an affidavit, and, although there is some contrariety of judicial decisions upon the subject, the weight of authority sustains it."

An affidavit need not be signed by the affiant, unless such signature is required by some statute or by a rule of court: Bloomingdale v. Chittenden, 75 Mich. 305, 42 N. W. 836; Norton v. Hague, 47 Minn. 405, 50 N. W. 368; Garrard v. Hitsman, 16 N. J. L. 124; Shelton v. Berry, 19 Tex. 154, 70 Am. Dec. 326. In California in Ede v. Johnston, 15 Cal. 53, the court said: "It is not necessary that the parties should sign the affidavit (an affidavit attached to a chattel mortgage). This is too well settled to require discussion. It sufficiently appears that the affidavit was taken by a competent officer." This case was cited with approval and followed in Pope v. Kirchner, 77 Cal. 152, 19 Pac. 264; State v. Washoe Co., 5 Nev. 317; and Lutz v. Kinney, above referred to (23 Nev. 279, 46 Pac. 257). It has also been followed in two later California decisions: A. P. Hotaling & Co. v. Brogan, 12 Cal. App. 500, 107 Pac. 711, and Fairbanks, Morse & Co. v. Getchell, 13 Cal. App. 458, 110 Pac. 331. In Gambrinus Stock Co. v. Weber, 41 Ohio St. 689, the agent of the corporation mortgagee in a chattel mortgage omitted to affix his name to the affidavit. There was a certificate by a notary public, duly signed and sealed, which in effect stated that the statement was sworn to by the mortgagee before him; and the court held that the verification was prima facie sufficient, and could only be overcome by evidence that the statement was not in fact sworn to by a proper agent of the corporation. In Stone v. Marvel, 45 N. H. 481, the parties to the mortgage wrote their names at the beginning of the affidavit instead of subscribing it as required by the statute, and the affidavit was in consequence declared invalid.

In this conflict of authority with practice and custom, we unhesitatingly admonish those whose duty it is to make affidavits to make them by first subscribing them and then swearing them before the proper officer, and then to see that the jurat is completed as to date and place of swearing, and that the officer also subscribes them before they are used. In the greater number of statutory provisions, the subscription is called for; in the greater number of cases the absence of the subscription is not based on principle, but on carelessness, and