Spafford v. First Nat. Bank

Cole, J. The only ground assigned in the motion is that the mortgage was taken in violation of the law of congress entitled, “ An act to provide a national currency,” etc. We can properly only consider and determine the questions made to and passed upon by the district court. Latterrett v. Cook, 1 Iowa, 1, and cases cited. Whether such a motion as was made in this case can properly, under Revision, section 3138, be made and entertained at the stage of the case when it was done and [183] before a trial, we do not decide; but conceding it properly made, we dispose of tbe question upon its merits. From the pleadings it is apparent that the indebtedness secured by the mortgage was contracted to the national bank on and after September 30, 1871, and prior to the mortgage, February 17, 1872. The fact that a part of the debt, the note for $3,000, was secured by a chattel mortgage contemporaneous with its creation to the bank, can have no hearing here, since that security has been canceled and surrendered. If its invalidity be granted, such invalidity would not follow the debt, which was in no manner tainted by it, into the new security subsequently acquired. Conceding, as we do, that the national bank, defendant, “being the mere creature of the law, possesses only those properties which the charter of its creation confers.uponit ” (Dartmouth College v. Woodward, 4 Wheat. 464), and conceding as we may (but without deciding it), that the second subdivision of section 28 of the national bank act, to wit: “ Second: Such as shall be mortgaged to it in good faith by way of security for debts previously contracted,” relates only to real estate; yet there being no express prohibition we hold the mortgage valid and that the authority in the bank to take, hold and enforce it, for a previously contracted debt, exists under the implied power to protect itself from loss, save its property and securities from sacrifice, and successfully to execute the purposes of its creation. We thus hold, both upon principle and authority, as we think; and this too, without calling in aid of the same conclusion, the express grant to such corporations of the same right as natural persons “ to make contracts, sue and be sued,” contained in section 8 of the act. The First National Bank v. Haire, 36 Iowa, 443. Affirmed.