Kennedy v. Knight

21 Wis. 340 | Wis. | 1867

Cole, J.

The objection taken by the counsel for the appellants, that the mortgage was void because not made to the president of the bank, seems to us untenable. The mortgage was made to the bank itself. The general banking law of New York authorized the banking association to hold and convey such real estate as might be mortgaged to it in good faith by way of security for loans made by or moneys due to such association. This mortgage was given to the bank for a purpose for which it was expressly authorized to take mortgages. And although it was further provided in the general statute, that all conveyances of real estate should be made to the president, or such other officer as should be indicated for that purpose in the articles of association, and the articles indicated or declared that the president, for the time being, should be the person to whom conveyances should be made, yet clearly the banking association was the real owner of the security. The mortgage was really and truly the property of the bank, whether given to the bank directly or conveyed to the president for the use of the bank. The object in permitting conveyances to be made to some officer of the bank, instead of being made to the bank itself, was evidently to facilitate the transaction of business., and not to prohibit the bank from takng -title.

Another objection urged is, that the plaintiff failed to show title in himself to the note and mortgage. The note was indorsed in blank by “Roscius R. Kennedy, President of the Farmers’ Bank' of Saratoga county, N. Yand there was a written assignment of the mortgage by him to the plaintiff, under the seal of the corporation, in the same official character. By the articles of association it was provided, that no conveyance of real estate, nor any contract relating thereto, should be obligatory upon the association unless the same should be authorized by a resolution of the board of directors. Now it is argued that it should be shown by competent evidence, not only that Kennedy was president of thebank at the time he indorsed the note and assigned the mortgage, but also that there was a resolution of the board authorizing him to transfer these securities. We suppose possession of the note was prima facia evidence that the same was indorsed by the person by whom it purports to be indorsed. The assignment of the mortgage was under the seal of the corporation; but whether there was any proof of the signature of Kennedy, we are not informed. The bill of exceptions does not purport to contain all the evidence, and for aught that appears, his signature might have been proven. But besides, the bank is not here objecting that these securities have been transferred by their agent without authority. The legal presumption is, that it is satisfied with the act of Kennedy in transferring them. At all events, we see no reason for relieving the mortgagors from the payment of a debt because no resolution of the board was shown. City Bank of New Haven v. Perkins, 29 N. Y., 554. It is sufficient that the plaintiff’s title is good as against the defendants. If there are any others who claim a title to these instruments superior to that of the plaintiff, it can be determined whenever they come before the court to assert it. As it is, the defendants are concerning themselves on behalf of the bank, which makes no claim on its own account. This they should not be permitted to do. City Bank of New Haven v. Perkins, supra.

Again, it is contended that the bank, by taking the note and mortgage, attempted to exercise its powers of banking within this state. This position is clearly unsupported by any fact in the case. The bank merely took a note secured by a mortgage upon lands in this state. Whether these instruments were given to secure money loaned by the bank at the time, or a debt due, does not appear. It is to be presumed that the bank acted within its charter. By the law creating it, the bank was authorized to loan money and take a mortgage to secure its payment. We know of nothing in the laws or public policy of this state, which forbid a foreign bank to take securities here for the repayment of a loan previously made; and, for aught that appears, that might have been this case. We do not think such a transaction must be condemned because it is an attempt upon the part of such bank to exercise banking powers and privileges within this state, contrary to the intent of our constitution and laws.

A further objection is taken, that the note and mortgage are void for usury. The rate of interest reserved is ten per cent, per annum. When these securities were executed, parties were permitted by the law of this state to contract for any rate of interest not exceeding twelve per cent. Oh. 55, Laws of 1856. It does not appear that there was any provision in the banking, law of New York which restricted banks to any particular rate of interest. They were governed by the statute upon the subject of usury applicable to individuals and corporations, which limited the rate of interest to seven per cent., and declared the contract void by which a greater rate was reserved. But there was nothing to prevent the bank from contracting for the payment of interest at the rate of ten per cent, on a loan in this state. The contract was made here, was to be performed here, and is governed by our laws upon the subject of usury. These securities would not have been usurious if given to a natural person living in New York, and they were equally valid when given to this bank. Rock River Bank v. Sherwood, 10 Wis., 236.

The statute of limitations is relied on to prevent a recovery. The remedy of foreclosure on the mortgage would not be barred, even if the statute had run upon the note. Wiswell v. Baxter, 20 Wis., 680. But the note was not barred. The defendant James C. Knight testified on the trial, that he was mustered into the service of the United States as lieutenant in 1861, and remained constantly in the military service until 1865. By chap. 32, Laws of 1863, he was exempt from the service of civil process after that law took effect, for three years. But the fifth section provided that the time a person was exempt from the service of civil process under the provisions of that law, should not be taken as any part of the time limited by law for the commencement of any civil action. It is very clear, in view of this statute, that the remedy was not barred upon the personal obligation.

There is a clerical error in the judgment, in describing one tract of land mortgaged. The error is in describing the tract as in range “4” east, whereas it should be range “5" east. The false description would probably not vitiate a deed given of this tract, as the county, section and township are correctly given. It is a case within the maxim, Balsa demonstrado non nocet. But the judgment will be affirmed with liberty tq the respondent to apply to the circuit court to correct the judgment entered in this particular.

By the Court. — The judgment of the circuit court is affirmed.