Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/284

 § 302.] THE LAW OF PRIVATE COBPORATIONS. [CHAP. VII. tutes the law. A court of equity is always reluctant in the last degree to make a decree which will affect a forfeiture." 1 ". . . . The statute does not declare such a security void. It is silent upon the subject. If Congress so meant, it would have been easy to say so, and it is hardly to be believed that this would not have been done, instead of leaving the question to be settled by the uncertain result of litigation and judicial decision. Where usurious interest is contracted for, a forfeiture is prescribed and explicitly defined." 2 ". . . . 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 wherever the offensive fact shall occur. The impending danger of judgment of ouster and dissolution was, we think, the check, and none other contemplated by Congress." 3 Accordingly, a national bank may enforce against a mortgagee, and parties claiming under him with notice, a mortgage of lands executed to it as collateral security for his then existing as well as his future indebtedness. An objection to taking such a mortgage as security for future advances can be urged only by the United States. 4 198 U. S. 626. 2 lb. 627. 3 lb. 629. This case was followed in Graham o. National Bauk, 32 N. J. Eq. 804 ; Thornton v. Nat. Exch. Bk., 71 Mo. 221 ; Winton v. Little, 94 Pa. St. 64 (overruling previous Pennsyl- vania decisions) ; Oldham v. First Nat. Bk., 85 N. C. 240. Compare Silver Lake Bauk v. North, 4 Johns. Oh. 370. U. S. 99 ; Ace. Fortier i New Or- leans Nat. B'k 112 U. S. 439, fol- lowed in Simons r. First Nat. Bk., 93 N. Y. 269 ; Myers v. Campbell, Col- lector, 64 N. J. L. 186. See Reynolds r. Crawfordsville First Nat. Bk., 112 U. S. 405 ; Fiitts v. Palmer, 132 U. S. 282 ; Thompson v. St. Nicholas Xat. Bk., 146 l T. S. 240; Cheffee c. Middlesex R. R. 14(3 Mass. 224; 264 Wherry v. Hale, 77 Mo. 20 ; Fifth Nat'l B'k, v. Pierce, 117 Mich. 376 ; Batty v. Eureka Bank, 62 Kas. 384. The following cases, in so far as in- consistent with Nat. Bk. v. Mat- thews, and Nat. Bk. v. Whitney, are not authority. Crocker v. Whitney, 71 N. Y. 161 (reversed in Nat. Bk. v. Whitney) ; Fridley v. Bowen, 87 111. 151. A note secured by mortgage on real estate was assigned by a state bank to the national bank organized as its successor : held, that the na- tional bank could foreclose the mort- gage. Scofield v. State Nat. Bk., 9 Neb. 316. A national bauk which purchases a promissory note from an indorsee may maintain an action thereon against a prior party thereto, without regard to whether the pur- chase was one the national bank was
 * National Bank v. Whitney, 103