
    The Washington Life Insurance Company, Respondent, v. Augustus Clason, Appellant, Impleaded with Others.
    
      A bond and mortgage taken by a life insurance company — enforcible although the real estate is not worth fifty per cent moi'e than the loan — the State only can object. '
    The effect of sections 13! and 16 of chapter 690 of the Laws of 1892 providing that bonds and mortgages taken as securities by insurance companies shall be upon “ improved, unincumbered real property in. this State worth fifty percent more than the amount loaned thereon,” is not to render void and unenforcible a mortgage taken by such a company upon property already mortgaged for more than half its value, since no penalty is imposed by the statute for taking such securities upon a smaller margin than that mentioned in it; and it cannot be presumed that it was the intention of the Legislature to sanction a construction of a statute which would destroy, instead of strengthening, the investments of insurance corporations.
    A disregard of the provisions in question is a matter of which cognizance can be taken by the State alone. ■
    Appeal by the defendant, Augustus Clason, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office -of the clerk of the county of New' York on the 24th day of December, 1896, upon the decision of the court rendered after a trial at the-New York Special Term.
    
      L. Laflin Kellogg and Alfred G. Petté, for the appellant.
    
      Dmid Thompson, for the respondent.
   Patterson, J. :

This action was brought for the foreclosure of a mortgage and the sale of the mortgaged premises. The mortgage w'as made by the defendant, Augustus Clason, and was given as collateral security to a bond, the consideration of which was money loaned. The plaintiff is a corporation carrying on the business of life insurance. It made a loan and took the security of the mortgage apparently in the course of its business and as an investment of so much of its corporate funds, the transaction being directly between the plaintiff and the defendant Clason, That defendant interposed an answer to. the complaint and set up as an affirmative defense that at the time the consideration money of the bond and mortgage ■ was advanced to him by the plaintiff, the premises covered by the mortgage were not unincumbered, and that there was then outstanding upon such premises a mortgage of $100,000, which was an amount equal at the least to fifty per cent of the value of the mortgaged premises, and that, therefore, such premises were not worth fifty per cent more than the sum loaned by the plaintiff and secured by the mortgage sought to be foreclosed, and that the security given by the defendant and taken by the plaintiff was so given and taken in contravention of the statute of the State of New York relating to loans upon bond and mortgage made by insurance corporations, and that the transaction as to the security was and is against public policy and void. On the trial at the Special Term the defendant offered to prove the facts, which it was claimed would establish the defense of • the illegality and invalidity of the security, and the offer was overruled. Judgment was afterwards ordered for the plaintiff, and from that judgment this appeal is taken.

The contention of the appellant is that the security is void, and ' that an action cannot be maintained upon it. It is not' claimed that the whole of the transaction is vitiated so that there could be no recovery on a naked demand for the money loaned,- but the argument is that the provisions of the statute show it to be the policy of the State that securities of this character shall not be enforced, and that the effect of the statute is to render them unenforcible. The act of the Legislature referred to (Laws 1892, chap. 690, § 16) provides that the cash capital of insurance companies shall be invested and kept invested in the kinds of securities in which deposits with the Superintendent of Insurance are required to be made; that the residue of the capital and the surplus moneys and funds of every domestic insurance company over and above its capital stock and the amount deposited with the superintendent may be invested on the pledge of any securities in which deposits are required to be invested. Section 13 of the same act prescribes that the deposits made with the Superintendent of Insurance shall be in the stock and bonds of the United States or the State of New York, or in county bonds or bonds of incorporated cities of this State authorized to be issued by the Legislature, “ or in bonds and mortgages on improved, unincumbered real property in this State worth fifty per centum more than the amount loaned thereon.”

It will be seen from these provisions of the' statute that the only vice in .this mortgage which it is claimed avoids -it, is referred to» in the allegation of the complaint that the mortgaged premises were not unincumbered and worth fifty per cent more than the amount loaned. There is nothing in the statute which declares that securities, such as this mortgage, shall be void, nor are bonds and mortgages on real estate prohibited securities. On the contrary, they are lawful securities. They are of the character authorized by the statute. If the statute had declared them void, or if in their mature they were strictly prohibited securities, the discussion would be ended. In all the cases in which the securities have been declared to be unavailable and unenforcible in the hands of the holder, the statute has either declared them void, or they have been altogether prohibited securities, or it has been adjudged that investment in them would run counter to the policy of- the law. As the Legislature has not enacted that mortgages of this character are void, as there is no prohibition upon investing the surplus moneys or funds of insurance companies in bonds and mortgages, the only subject that can require further consideration is whether .it can be inferred, reasonably, -that it was the intention of the Legislature to destroy in the hands of insurance companies securities like that in suit, where there is merely an excess of the amount of the loan over the proportion named in the act, of value of the mortgaged property. It would seem as if the statement of this proposition carried with it its own answer. The purpose of the statute is to protect the creditors and the policyholders, and not to allow a debtor, after giving security upon the faith of which, in reality, money is advanced him, to withdraw the security and take away from the corporation that upon the faith of' which alone the transaction was in reality made.' The question of the enforcibility of securities in which a corporation is not authorized to invest its moneys has been passed upon by the Supreme Coiirt of the United States in cases arising under the National Banking Law. In the-case of The National Bank v. Matthews (98 U. S. 621), a deed of trust on real property ill Missouri was given by debtors to secure a promissory note, which note, and deed of trust passed to- the Union National Bank of St. Louis as' security for a loan, which loan not being paid, an effort was made by the bank to sell the premises; Matthews thereupon applied for an injunction to restrain the sale of the premises, on the ground that the security was one the bank was forbidden to take by a statute of the United States. The injunction was sustained in the State court, but the decree of that court was reversed by the Supreme Court of the United States, and it was held that the security was enforcible; that 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.” What was decided in that case was reasserted in the case of The National Bank v. Whitney (103 U. S. 99). The court there remarked that the question of the. effect of taking such securities was not an ojien one in that court since the decision in the Matthews case, and repeated that the prohibitory clause of the Banking Law did not vitiate real estate securities taken for loans, and “ that a disregard of them only laid the association open to proceedings by the government.” It is further remarked, that <c whatever objection there maybe to it as security for such advances from the prohibitory provisions of statute, the objection can only be urged by the government.” (Fleckner v. U. S. Bank, 8 Wheat. 338, 355.) We think these views are applicable to this case, the question being essentially the same. The securities are not declared to be void; no penalty is imposed by the statute upon taking them with a smaller margin of value than that mentioned in the statute, and it cannot be presumed that it was the intention of the Legislature to sanction a construction of that statute which would destroy, instead of strengthen, the investments' of insurance corporations. A check upon the company remains, and it is a serious one. The penalties that may be imposed by the government of the State upon a corporation, for carrying on its business in violation of law, are of the gravest nature.

This case is plainly distinguishable from that of Pratt v. Short (79 N. Y. 437). There the securities condemned were made void by the statute, and there was a total prohibition, upon the corjioration investing in commercial paper, and that total prohibition, coupled with the declaration that such an investment should he void, clearly distinguished that case from this.

The judgment of the court below was right and should be affirmed, with costs,

Van Brunt, PL J., Rumsey, Williams- and Parker, JJ.? concurred.

Judgment affirmed, with costs.  