58 Neb. 340 | Neb. | 1899
In this case a rehearing was granted the appellees William H. Sumner and the Schuyler National Bank. The opinion originally filed is reported in 56 Neb. 565, and therein will be found a general description of the relation of the parties and the pleadings filed by each. The present inquiry is with relation to the issues under which Sumner and the Schuyler National Bank seek relief, and accordingly we shall confine ourselves to the pleadings wherewith these parties are concerned. In his cross-petition William H. Sumner alleged that on August 8, 1890, The defendants George Thrush and Charles Thrush were indebted to the Schuyler National Bank in the sum of' $5,000, evidenced by their promissory note to said bank; that said note was renewed from time to time, and on March 31,1894, there remained due the sum of $3,229, for which amount George Thrush gave his promissory note to the bank, due 180 days after its date, and that no part of this note had been paid. It was further alleged by Sumner that on August 8, 1890, George Thrush and Mattie Thrush executed to him their promissory note for the sum'of $5,000, due two years after date, with ten per cent interest per annum, payable annually, and that to secure the said note the makers of said note made a mortgage on certain described real property, which said mortgage was duly filed for record. In his said cross-petition Will: iam H. Sumner made the following averments: “This defendant further alleges that the note and mortgage so as aforesaid executed and delivered by the defendants
In the former opinion it was pointed out that the taking of real estate security for the loan of money constitutes no defense to a foreclosure; hence the citation of authorities on behalf of the bank to that proposition was not necessary. It was further pointed out in that opinion that the government might complain, and upon this proposition it is noticeable that the bank has cited no authorities and has made no argument. There was, in view of the last consideration named, an incentive to the bank to take the security upon real property as it did in this instance, so that it might appear upon the face of the note and mortgage that the bank originally had not been a party thereto, if the governmental authorities’ should insist upon a strict compliance with the provisions of the federal statute forbidding the taking of a real estate mortgage except in certain cases, in which that under consideration is not included. In Norfolk Nat. Bank v. Schwenk, 46 Neb. 381, Norval, C. J,, quoted "as of binding force upon this court the following language of Swayne, J., in Farmers & Merchants Nat. Bank v. Dearing, 1 Otto [U. S.] 29: “The national banks organized under the act are instruments designed to be used to aid the government in the administration of an important branch of the public service. They are means appropriate to that end. Of the degree of the necessity which existed for creating them,- congress is the sole-judge. Being such means, brought into existence for this purpose, and intended to be so employed, the states can exercise no control over them, nor in anywise affect their operation, except in so far as congress may see proper to per-. mit. * * * In the complex system of polity which obtains in this country the powers of government may be divided into four classes: Those which belong exclusively to the states; those which belong exclusively
Reversed and remanded.