the reason and spirit of the restraining clause of the statute, which only meant to prohibit the banking company from vesting their capital in real property, and engaging in land speculations. A mortgage taken to secure a loan advanced bona fide as a loan, in the course and according to the usage of banking operations, is not surely within the prohibition."
It is not denied that the loan here in question was within this category. This authority, if recognized as sound, is conclusive. See also Baird v. The Bank of Washington, 11 Serg. & R. (Pa.) 411.
Sedgwick (Stat. and Const. Constr. 73) says: "Where it is a simple question of authority to contract, arising either on a question of regularity of organization or of power conferred by the charter, a party who has had the benefit of the agreement cannot be permitted in an action founded upon it to question its validity. It would be in the highest degree inequitable and unjust to permit a defendant to repudiate a contract, the benefit of which he retains."
What is said in the text is fully sustained by the authorities cited.
We cannot believe it was meant that stockholders, and perhaps depositors and other creditors, should be punished and the borrower rewarded, by giving success to this defence whenever the offensive fact shall occur. The impending danger of a judgment of ouster and dissolution was, we think, the check, and none other contemplated by Congress.
That has been always the punishment prescribed for the wanton violation of a charter, and it may be made to follow whenever the proper public authority shall see fit to invoke its application. A private person cannot, directly or indirectly, usurp this function of the government.
The decree of the Supreme Court of Missouri will be reversed, and the cause remanded with directions to dismiss the bill; and it is
MR. JUSTICE MILLER dissenting.
I am of opinion that the National Banking Act makes void every mortgage or other conveyance of land as a security for
money loaned by the bank at the time of the transaction to whomsoever the conveyance may be made; that the bank is forbidden to accept such security, and it is void in its hands.
The contract to pay the money, and the collateral conveyance for security, are separable contracts, and so far independent that one may stand and the other fall.
In the present case, the money was loaned on the faith of the deed of trust, and that instrument is void in the hands of the bank, but the note, as evidence of the loan of money, is valid against Mrs. Matthews personally. With this latter contract the State court did not interfere. It enjoined proceedings
under the deed of trust against the land, and did no more.
Its judgment in that matter ought, in my opinion, to be affirmed.
ACCOUNT. See Written Instrument, Reformation of, 1.
ACTION. See National Bank, 2.
ADMIRALTY. See Practice, 4; Statutes, Construction of.
Two schooners were sailing down the Delaware River, when a steamer
proceeding in the same direction, at the rate of eight or nine miles
an hour, was, in daytime, approaching near enough to them to ren-
der it necessary to make calculations to keep out of their way. They
were in parallel courses, not far apart, beating upon their starboard
tack, and nearing the Jersey bank. Instead of going outside of
them, she, without seasonably slackening her speed, attempted to
pass between them, and came into collision with and sunk the one
nearer the bank, as the latter, having run her starboard tack and
come about on her port tack, tacked again before she was under full
headway to avoid colliding with the other schooner, which was still
properly on her starboard tack. Held, that the steamer was liable.
The "Abbotsford," 440.
ADMISSIONS. See Evidence, 1.
ADVERSE TITLE. See Purchase-money, Suit to enforce Lien for Pay-
ment thereof, 2, 3.
1 The court adheres to its ruling in Bowen v. Chase (94 U. S. 812),
touching the title to certain lands whereof Stephen Jumel was some-
time the owner, which were conveyed upon certain trusts to the
separate use of Eliza Brown Jumel, his wife, with a general power
of appointment during her lifetime, and of the several appointments
made thereunder to Mary Jumel Bownes by said Eliza, who sur-
vived her husband, which ruling declares that the title to the prop
APPOINTMENT, POWER OF (continued).
erty situate in New York City passed on her death to said Mary in
fee, except a tract of sixty-five acres on Harlem Heights, in regard
to which no opinion was expressed. Bowen v. Chase, 254.
2. An appointment under a power is an intent to appoint carried out,
and, if made by the last will and testament of the douee of the
power, the intent, although not expressly declared, may be deter-
mined by the gifts and directions made, and if their purpose be to
execute the power, the instrument must be regarded as an execu-
tion.
3. A., who had a power to appoint a fund in the hands of B., made her
will, wherein she declared her intention thereby to execute all pow-
ers vested in her, particularly those created in her favor by certain
deeds executed in 1839, whereby she became entitled to appoint
that fund. Following this declaration were various gifts of pecu-
niary legacies for charitable purposes, amounting to $28,500, and
also provisions for the payment of certain annuities. Special dis-
position and appropriation were made of her personal property,
which consisted of household furniture, carriage and horses, a grow-
ing crop upon a farm, a small sum of cash in hand, some petty debts
due her, and about sixty slaves, the latter constituting nearly nine-
tenths of the value of the whole. Certain real estate was also
to be sold, and the proceeds applied to a specific purpose. The
will declared that if it should appear at her decease that the be-
quests exceeded the amount of funds left, the first five only (those
to charities) should be curtailed until brought within the assets.
The fund in the hands of B. was not more than sufficient to pay the
legacies. Held, 1. That it was the intention of the testatrix that
the legacies to charitable purposes and to pay annuities should be
paid, but not from the proceeds of the personal property which she
owned in her own right, and specifically appropriated. 2. That the
will was an execution of the power, and it appointed the whole fund
to her executors. Id.
4. The "deed of explanation
(supra, p. 317) executed in 1845 was
effectual, and its operation was to reduce the annuity charged upon
the lands in the deed of 1839 proportionately as A. reduced the fund
charged by her appointments or outlays, so as to make the annuity
in each and every year equal to six per cent interest on so much of
said fund as remained unappropriated or unexpended by her in
each and every year respectively. Id.
APPRAISEMENT. See Lands, Condemnation and Appropriation thereaf
for Public Uses, 3-5.
APPROPRIATIONS BY CONGRESS. See Lease.
ARKANSAS. See Taxation, 8.
ARREARS OF PAY AND BOUNTY. See Criminal Law, 3.
ASSIGNEE IN BANKRUPTCY. See Bankruptcy; Jurisdiction, 3;
Limitations, Statute of, 2.
1. It is only through the instrumentality of his assignees that creditors
can recover, and subject to the payment of their claims, the property
which the bankrupt fraudulently transferred prior to the adjudica
tion in bankruptcy, or which he conceals from, and fails to surren-
der to, his assignees. Glenny v. Langdon, 20.
2. Assignees of the bankrupt are subject to the control and direction of
the proper court, and it may, for good cause shown, compel them to
take the requisite steps for the full and complete protection of the
rights of his creditors. Id.
ASSIGNMENT. See Claims against the United States; Letters-patent, 17.
ATTORNEY-GENERAL, SUIT BY, IN THE NAME OF THE
UNITED STATES. See Constitutional Law, 5-7; Practice, 1;
Union Pacific Railroad Company, 1, 9.
BANKRUPTCY. See Assignee in Bankruptcy; Process, 1, 2; Jurisdiction,
3, 5, 8, 9.
A., in due course of legal proceedings, recovered, March 14, judgment
against B., a merchant who, the preceding day, had made an as-
signment of all his property for the benefit of his creditors. An
execution was forthwith sued out upon the judgment, and levied
upon certain goods, part of the property so assigned. On the peti-
tion of a creditor, filed March 31, alleging that B. had committed
acts of bankruptcy by fraudulently suspending and not thereafter
resuming payment of his commercial paper due January 1, and by
making said assignment, B. was by the proper court adjudged to be
a bankrupt, and his estate conveyed in the usual form by the register
to the assignee in bankruptcy, who filed his bill against A. to deter-
mine the title to the proceeds of the sale of the goods, which by
consent had been made without prejudice to the rights, if any, of
A. by the levy of the execution. Upon the hearing it appeared by
the proofs that the assignment by B. was made in good faith to
secure the distribution of his property among all his creditors.
Held, that A. acquired no priority by the levy, and that the assignee
in bankruptcy is entitled to the proceeds. Reed v. McIntyre, 507.
BIGAMY. See Constitutional Law, 1; Indictment.
BILL OF EXCEPTIONS. See Practice, 4.
BILLS OF EXCHANGE AND PROMISSORY NOTES. See Na
tional Bank.
BURDEN OF PROOF. See Insurance, 4; Letters-patent, 9.
CALIFORNIA. See Estoppel, 1; Jurisdiction, 7; Mexican Land-Grants
Mining Claims, 3–5.
CAPITAL STOCK. See Taxation, 8-10.
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