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The first objection taken to the decree is that the comptroller had no right to institute proceedings to foreclose the mortgage, and cannot therefore sustain the action.
By the 7th section of the act of 1838, to authorize the business of banking, an association formed under it may secure half their circulating notes by transferring to the comptroller bonds and mortgages instead of public stocks, as authorized by the previous sections. The legal title thus
becomes vested in the comptroller, in trust for the redemption of the circulating notes of the association, and, when they are paid, for the association itself.
A right to collect the money due upon a bond and mortgage or other security is a right incident to the ownership, and passes with it from the original owner to the assignee. If the security were assigned in trust, the right of the trustee to collect the money may depend on the nature and object of the trust. Where the collection would be a breach of trust, the trustee cannot maintain the action; but where it is in conformity with and in furtherance of the object of the trust a trustee has in this respect the same power as the absolute owner. The securities in question were held by the comptroller; first, for the benefit of the billholders, secondly, for the benefit of the association, whose stockholders had the ultimate beneficial interest in the proper application of the money. The statute does not give to the comptroller the express power of enforcing payment. There was no need of such a power. It was one of the incidents of the assignment of the securities to him, qualified, however, by the nature of his trust. The 12th section of the statute declares that the bonds and mortgages shall be held by him exclusively for the redemption of the bills put in circulation by the association. But the other sections of the act show that the association retains nevertheless a beneficial interest in them, independent of its interest in the application of their value to the redemption of the bills. The 10th section authorizes the association to receive the interest accruing annually on the securities, unless default be made in the payment of their bills. The Bank of Central New-York had thus a direct and immediate beneficial interest in the bond and mortgage, and this, notwithstanding the language of the 12th section, was a part of the trust on which they were held by the comptroller.
The duty of the comptroller, therefore, as the trustee for the bank in relation to the interest, requires him, as in other
cases of trust, to act for the interest of his beneficiary; and at least to permit his name to be used for the collection of the interest by suit, if that should become necessary. He might undoubtedly require a proper indemnity against the costs and expenses of the suit, and on being satisfied in that respect there can be no objection to a suit in his name to enforce payment. The statute is itself an absurdity unless it furnishes or permits the use of means necessary to protect the rights and interests which it creates or establishes. Its primary object in requiring securities to be placed in the hands of the comptroller is to protect the billholders against the insolvency of the banks. It is obvious that cases may often occur in which it may become necessary for the interest of the billholders, as well as for the banks, that payment of the securities should be enforced by legal process. The lands mortgaged may be depreciating in value, and the bank may not be in condition to take them out of the hands of the comptroller, by giving other securities, and yet no default in paying the circulating notes may have occurred. The security of the billholders in such case may require that the money should be collected and held until other securities be given, or so much in circulating bills be returned by the bank, or until it shall become necessary to pay it to the billholders, by failure of the bank. There is nothing in the statute to prevent such collection, either directly or by just and necessary implication. The power to reassign the bonds and mortgages contained in the 5th and 9th sections provides a mode by which the banks may again become absolute owners of these securities; but one of the many objects of the statute was to protect the billholders against the fraud and neglect of the bank and its officers, and this object cannot be perfectly attained unless the trustee may, in virtue of his general obligations and duties as such, attend to the interests of his cestuis que trust. The mortgagor may become the president of the bank; and his interest in regard to the payment of the security may be in direct hostility
to the interest of the other cestuis que trust. The power of the comptroller to sell these bonds and mortgages after the failure of the bank to redeem its bills, as provided for in § 11, was given for the purpose of securing a speedy redemption after the failure; but it does not interfere with his power to collect before failure, where it may be deemed necessary for the interest of any of the parties beneficially interested. No doubt can exist that the collection of the money by the comptroller is a valid discharge of the security. The defendants, therefore, can have no ground of complaint of any injustice done them.
The second point on the part of Munger the appellant is, that he is not personally liable for any deficiency which may appear on the sale of the mortgaged premises. In case of the failure of his twenty lots to bring the sum of $1700, and interest thereon from July 1, 1842, the decree charges him personally with the balance. This clause in the decree is founded on the clause in the deed from Thurber to Munger, by which the latter assumes to pay one-half the bank mortgage, modified by the bond which he took from Thurber upon accepting the deed. He retained $1700 of the purchase money, because his twenty lots were subject to the mortgage, and Thurber by his bond undertook to pay $1550, which together made up half the mortgage. This personal liability depends on the true construction of the deed and bond, when taken together and regarded as one entire agreement in relation to the point in question. The agreement contained in the two instruments amounts to this: That Thurber should pay $1550 and interest thereon to Munger, to be applied on the mortgage; and if he did so, that Munger should pay the residue, to wit, $1700 and interest. These two sums would pay off half the mortgage. But in case Thurber should fail to pay his proportion as above, then that Munger should not be bound to pay any part of his $1700 and interest. This would have left Munger in the same condition as if no agreement had been made
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
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The first objection taken to the decree is that the comptroller had no right to institute proceedings to foreclose the mortgage, and cannot therefore sustain the action.
By the 7th section of the act of 1838, to authorize the business of banking, an association formed under it may secure half their circulating notes by transferring to the comptroller bonds and mortgages instead of public stocks, as authorized by the previous sections. The legal title thus
becomes vested in the comptroller, in trust for the redemption of the circulating notes of the association, and, when they are paid, for the association itself.
A right to collect the money due upon a bond and mortgage or other security is a right incident to the ownership, and passes with it from the original owner to the assignee. If the security were assigned in trust, the right of the trustee to collect the money may depend on the nature and object of the trust. Where the collection would be a breach of trust, the trustee cannot maintain the action; but where it is in conformity with and in furtherance of the object of the trust a trustee has in this respect the same power as the absolute owner. The securities in question were held by the comptroller; first, for the benefit of the billholders, secondly, for the benefit of the association, whose stockholders had the ultimate beneficial interest in the proper application of the money. The statute does not give to the comptroller the express power of enforcing payment. There was no need of such a power. It was one of the incidents of the assignment of the securities to him, qualified, however, by the nature of his trust. The 12th section of the statute declares that the bonds and mortgages shall be held by him exclusively for the redemption of the bills put in circulation by the association. But the other sections of the act show that the association retains nevertheless a beneficial interest in them, independent of its interest in the application of their value to the redemption of the bills. The 10th section authorizes the association to receive the interest accruing annually on the securities, unless default be made in the payment of their bills. The Bank of Central New-York had thus a direct and immediate beneficial interest in the bond and mortgage, and this, notwithstanding the language of the 12th section, was a part of the trust on which they were held by the comptroller.
The duty of the comptroller, therefore, as the trustee for the bank in relation to the interest, requires him, as in other
cases of trust, to act for the interest of his beneficiary; and at least to permit his name to be used for the collection of the interest by suit, if that should become necessary. He might undoubtedly require a proper indemnity against the costs and expenses of the suit, and on being satisfied in that respect there can be no objection to a suit in his name to enforce payment. The statute is itself an absurdity unless it furnishes or permits the use of means necessary to protect the rights and interests which it creates or establishes. Its primary object in requiring securities to be placed in the hands of the comptroller is to protect the billholders against the insolvency of the banks. It is obvious that cases may often occur in which it may become necessary for the interest of the billholders, as well as for the banks, that payment of the securities should be enforced by legal process. The lands mortgaged may be depreciating in value, and the bank may not be in condition to take them out of the hands of the comptroller, by giving other securities, and yet no default in paying the circulating notes may have occurred. The security of the billholders in such case may require that the money should be collected and held until other securities be given, or so much in circulating bills be returned by the bank, or until it shall become necessary to pay it to the billholders, by failure of the bank. There is nothing in the statute to prevent such collection, either directly or by just and necessary implication. The power to reassign the bonds and mortgages contained in the 5th and 9th sections provides a mode by which the banks may again become absolute owners of these securities; but one of the many objects of the statute was to protect the billholders against the fraud and neglect of the bank and its officers, and this object cannot be perfectly attained unless the trustee may, in virtue of his general obligations and duties as such, attend to the interests of his cestuis que trust. The mortgagor may become the president of the bank; and his interest in regard to the payment of the security may be in direct hostility
to the interest of the other cestuis que trust. The power of the comptroller to sell these bonds and mortgages after the failure of the bank to redeem its bills, as provided for in § 11, was given for the purpose of securing a speedy redemption after the failure; but it does not interfere with his power to collect before failure, where it may be deemed necessary for the interest of any of the parties beneficially interested. No doubt can exist that the collection of the money by the comptroller is a valid discharge of the security. The defendants, therefore, can have no ground of complaint of any injustice done them.
The second point on the part of Munger the appellant is, that he is not personally liable for any deficiency which may appear on the sale of the mortgaged premises. In case of the failure of his twenty lots to bring the sum of $1700, and interest thereon from July 1, 1842, the decree charges him personally with the balance. This clause in the decree is founded on the clause in the deed from Thurber to Munger, by which the latter assumes to pay one-half the bank mortgage, modified by the bond which he took from Thurber upon accepting the deed. He retained $1700 of the purchase money, because his twenty lots were subject to the mortgage, and Thurber by his bond undertook to pay $1550, which together made up half the mortgage. This personal liability depends on the true construction of the deed and bond, when taken together and regarded as one entire agreement in relation to the point in question. The agreement contained in the two instruments amounts to this: That Thurber should pay $1550 and interest thereon to Munger, to be applied on the mortgage; and if he did so, that Munger should pay the residue, to wit, $1700 and interest. These two sums would pay off half the mortgage. But in case Thurber should fail to pay his proportion as above, then that Munger should not be bound to pay any part of his $1700 and interest. This would have left Munger in the same condition as if no agreement had been made
Thurber, as I understand the agreement, does not undertake to pay off the entire half of the mortgage, in case he fails to pay the $1550 with punctuality. Munger's twenty lots would still be liable to sale under the mortgage, and there is nothing in Thurber's bond by which he engages to indemnify Munger against the sale, beyond the indemnity already in his hands retained out of the purchase money. Whether they would have sold for more or less than $1700 and the interest thereon (which had been retained by Munger out of the purchase money), was matter of speculation and doubt; according to Munger's answer they were estimated in his purchase at $1813. If they should sell for more than $1700 and interest, it would be Munger's loss and Thurber's gain. If for less it would be Thurber's loss, because he was ultimately liable for any deficiency; and Munger would be a gainer of the difference between the amount they sold for and the purchase money retained. Thurber would still have been liable to pay the $1550 to Munger; and this was right, because the purchase money (including the $1700 retained by Munger as an indemnity against the mortgage) had been overpaid to the extent of the $1550 for which the bond was given. Thurber did not in fact forfeit or lose the $1700 which Munger had retained. He will instead of that sum have the advantage of the sale of the twenty lots and of the application of the proceeds upon his bank mortgage. I do not perceive that this was in any sense an unconscientious bargain. They had the right to make it, and the mortgagee has no right to complain of it, for his security was in no respect impaired by it. The decree, therefore, was erroneous in charging Munger personally for any deficiency, and should be modified accordingly.
It is erroneous also in another particular. The lots conveyed by Thurber to Gay in his lifetime were liable to pay one-half the bank mortgage; and Munger's twenty lots were not rightly chargeable with the payment of any part of that half, until it was ascertained by a sale of the lots
conveyed to Gay that the one-half could not be raised from them. Bissell's lots are a part or the whole of Gay's portion of the property. The decree directs the sale: first, of that portion of the mortgaged premises not sold to any of the defendants; second, of Munger's twenty lots for the purpose of raising the whole amount due on the mortgage; and thirdly, of Bissell's lots to make up any deficiency. The decree should be so modified as to subject Gay's portion of the mortgaged premises to the payment of one-half the amount due, and the residue to the payment of the remaining half; and if there should be a deficiency in either portion, resort may then be had to what may remain of the other. If the order in which the different lots in either of the two portions ought to be sold cannot be settled by the solicitors, a reference should be ordered by the court below to ascertain and report thereon.
Munger should be allowed his costs in the court below, but not on his appeal to this court — to be paid out of the proceeds of the sale.