| Iowa | Apr 30, 1873
— Under the issues made by the pleadings as amended, the following facts are proved: In 1856 John Haire began a general mercantile business in Ft. Dodge, with the funds and in the name of his wife, Mary M. Haire, he acting as her agent; and continued it till Nov. 1st, 1866, when a partnership was formed between Mary M. Haire and John H. Taafe, under the name of Haire & Co., by whom the business was continued, John Haire acting in the new firm business, for and on behalf of his wife. By the terms of partnership, each was to furnish $1,000 capital, Taafe furnished his in cash at once; but Mrs. Haire then only furnished the stock of goods on hand, worth, as agreed, $1,530. "While Mrs. Haire was doing business alone she acquired the title to Jots 1 and 5, in block 23 of Ft. Dodge, and upon the former, she had erected a storehouse, and residence used as a homestead.
On the 25th of January, 1869, the firm of Haire & Co. was largely indebted, but was in good credit and was supposed to be solvent. The firm desired to borrow of plaintiff $5,000, which plaintiff was unwilling to loan, on the bare credit of the firm. It was then agreed between all the parties, that since Mrs. Haire had not paid up all her capital stock to the firm, the firm
The notes were afterward renewed in April and in September, but the renewals were made in the name of Mary M. Haire, and indorsed by Haire & Co., and by Taafe; no part of either has ever been paid. A power of attorney of same date as the bond was executed by Taafe to E. Gr. Morgan, who was a cashier in the bank, authorizing him to assign the bond and mortgage; and the bond was also indorsed, in blank, by J. H. Taafe. The bond and mortgage came to the possession of the plaintiff about the time of the first renewal, but the assignment, by the attorney in fact, ‘was not written out or signed till January 6, 1870.
In October, 1869, a difference arose between the members of the firm of Haire & Co., and. each commenced a suit against the other to close up and settle the partnership; these suits were consolidated and a receiver of partnership effects was appointed and had made considerable progress in the settlement of the affairs, when, and on the 21st day of February, 1870, a'petition in bankruptcy was filed in the H. S. district court for Iowa, by creditors against the firm of Haire & Co.
Prior to bringing tbis action, tbe plaintiff commenced alike .action in tbe circuit court; tbe defendants demurred to tbe petition; tbe demurrer was argued, and pending its consideration, tbe plaintiff entered a dismissal of tbe action in tbe clerk’s office; no further proceedings bave ever been had in it, .and both parties bave treated it as dismissed.
IY. As to the effect of the limitation of the plaintiff’s powers, by the act of congress or eating national banks. By that act it is provided in section 8, that such banks shall have power to loan money on personal security. Section 28 provides as follows: “ And be it further enacted that it shall be lawful for any such association to purchase, hold and convey real estate, as follows: First. Such as shall be necessary for its immediate accommodation in the transaction of its business. Second. Such as shall be mortgaged to it in good faith by way of security for debts previously contracted. Third. Such as shall be conveyed to it in satisfactiqn of debts previously contracted in the course of its dealings. Fourth. Such as it shall purchase on sales under judgments, decrees or mortgages held by such association, or shall purchase to secure debts due to said association. Such association shall not pwrehase or hold real estate in any other case or for any other purpose than as specified in this section, nor shall it hold the
This is the whole of the section and all of the law having any bearing upon the question; the italics are those of the appellant’s counsel, and serve to call attention to the particular language upon which their claims are grounded. It is claimed by the defendants, Mary M. Haire and her husband, John Haire, that the mortgage was executed to secure a debt contracted contemporaneously with its execution, and if it was intended to inure to the benefit of the bank, it was void by force of the section of the act of congress above quoted, and hence cannot be foreclosed in favor of the plaintiff.
We would not construe this5 or any other statute, strictly and by its very letter only; but would look to its object and purpose, and give to its language such just and fair interpretation as would most completely effectuate that purpose. Not forgetting this, let us look first at its terms. It does not prohibit the mortgage of real property to another to be by that other held as security for a contemporaneous loan made by the bank; it says in effect that the bank may hold such real estate as shall be mortgaged to it in good faith for debts previously contracted, and that such association (bank) shall not hold real estate for any other purpose than as specified. Now, it will be noticed that the real estate in controversy was not mortgaged to the plaintiff and that the plaintiff does not now hold •it. Hence, this case is not within the letter of the statute.
But it is claimed that the effect of the transaction, as claimed by plain tiff and as proved, is the same as a mortgage to it, and therefore, it is within the spirit or purpose of the law. When prudent officers of a bank are asked to make a loan, they look inter alia to the ability of the borrower to pay as evidenced by his property, real and personal. If h'e has not sufficient property, they decline the loan; but if some friend of his shall convey to him in fee sufficient real estate, the same officers might make the loan. The loan, so made, would not be within the act, although the officers, in good faith, relied upon such
There is another view of the entire transaction which leads to the same conclusion. It is this : If we look to the transaction in view of its ultimate effects only, then we would find that the mortgage becomes a security to the bank and that the money was wholly applied to debts of the mortgagor previously contracted. So that, upon its face the transaction is not inhibited by the statute, nor does it effectuate results contrary to either its letter or spirit. The manifest purpose of the inhibition was to prevent such associations from acquiring or holding the title to real estate, except so far as necessary in order to accomplish the legitimate objects for which they were created.
Y. A point is made, but not confidently pressed, that the evidence shows Mrs. Haire to have executed the mortgage
Some effort is also made to show that the notes sued upon, or now held by the bank, are different from the notes described in the bond, and hence a foreclosure cannot be had. But there is no dispute that the notes were given in renewal of those described in the bond, and that the original debt secured by the mortgage is evidenced by them. This is sufficient.
We have given to the case a careful examination and find our views result in entire accord with those of the learned district judge who tried the case in the court below. Inasmuch as the evidence tends to show a homestead right in a part of the mortgaged property, it will be ordered that the homestead shall not be sold, except to satisfy any deficiency remaining after the sale of the other property liable to either a general or special execution in this case.
Affirmed.