Thornton v. National Exchange Bank. and the other for $700, payable three months thereafter to H. Clay Ewing at the First National Bank, Jefferson City. On the same day, said Bragg and wife conveyed to P. T. Miller in trust to secure said notes, property in Jefferson City known as "Bragg's Hall," and on the same day Ewing indorsed said notes to the National Exchange Bank, a corporation organized under the act of Congress in relation to National banks. On the 5th day of May, 1874, said Bragg and wife conveyed to Mary O. Thornton, by deed of that date, one undivided half of said property for the consideration of $7,000, expressly subject to said deed of trust. On the 25th of February, 1875, said Mary O. Thornton and her husband, A. B. Thornton, and Henry Bragg and wife conveyed said property to H. Clay Ewing in trust to indemnify the sureties of said Henry Bragg and Amos B. Thornton in their notes, one to the National Exchange Bank for $592; one to Sarah A. Chiles for $556.75, and one to the First National Bank of Jefferson for $1,000. The note to Mrs. Chiles was afterward paid. J. R. Crow and A. W. Ewing were sureties on the notes to Mrs. Chiles and the National Exchange Bank, and together with Green C. Berry, were sureties on the note to the First National Bank. These notes bore date 3d day of February, 1875. The suit of Thornton and wife by attachment against Bragg's administrator was substantially for a breach of covenant in the deed from Bragg to Mrs. Thornton, and by garnishment they seek to subject the proceeds of the sale of the "Bragg Hall" property by P. T. Miller, trustee in the first described deed of trust, to the payment of the judgment recovered by them against Bragg's administrator. That judgment has not been appealed from, and we have only to consider the proceedings in the garnishment cases from the judgment in which Thornton and wife have appealed to this court. At the sale of said property by P. T. Miller, as trustee, May 22, 1875, one Lamkin became the purchaser at the price of $4,744.50, for which he executed his note to said trustee, who on the same day assigned it to the National Exchange Bank for the benefit of that bank and the holders of the notes described in the deed of trust of February 25, 1875. The garnishments were served after the sale of the property, and after the assignment of the Lamkin note to the bank. Thornton v. National Exchange Bank. By the assignment of the notes of Bragg to the National Exchange Bank by H. Clay Ewing the deed of trust passed to the bank, and as the execution of the notes and the deed of trust and the advancement of the money thereon by the bank were contemporaneous acts, the transaction was a violation of section 28 of the act of Congress, which provides as follows: "It shall be lawful for any such association to purchase, hold and convey real estate as follows: First. Such as shall be necessary for its immediate accommodation in the transaction of its business. Second. Such as shall be mortgaged to it in good faith by way of security for debts previously contracted. Third. Such as shall be conveyed to it in satisfaction of debts previously contracted in the course of its dealings. Fourth. Such as it shall purchase on sales under judgments, decrees or mortgages held by such association, or shall purchase to secure debts due to said association. Such association shall not purchase or hold real estate in any other case or for any other purpose than those specified in this section, nor shall it hold the possession of any real estate under mortgage, or hold the title and possession of any real estate purchased to secure any debt due to it for a longer period than five years." The transaction betwixt Ewing, Bragg and the bank was the consummation of a loan by the bank to Bragg, and Ewing was not an accommodation indorser. Conceding, as it is claimed, that it was a violation of the foregoing section of National Bank Law, would the court, in a proceeding by these plaintiffs for that pur pose, have annulled the mortgage? We are aware that in the case of Matthews v. Skinker, 62 Mo. 329; 21 Am. Rep. 421, this court enjoined the sale of trust property, and held the deed of trust void in a similar transaction to that between Ewing, Bragg and the bank. The judgment however in that case was on appeal to the Supreme Court of the United States reversed, the court holding that the deed of trust was not void, and that it was error to enjoin the trustee from selling thereunder, and that while the law authorizing the establishment of National banks prohibits them when established from lending money on real estate security, yet if loans are made on such securities they are not void, but may be enforced. It was also held that a person borrowing money on such security could not interpose the statutory prohibition as a defense in a proceeding to enforce it, the court using the following language: "We cannot believe it was meant that stockholders, and perhaps depositors and other cred Thornton v. National Exchange Bank. itors, should be punished and the borrower rewarded by giving success to this defense whenever the offensive act shall occur. The impending danger of a judgment of ouster and dissolution was we think the check, and none other contemplated by Congress. That has always been the punishment prescribed for a wanton violation of a charter, and it may be made to follow whenever the proper public authority shall see fit to invoke its application. A private person cannot directly or indirectly usurp this function of the government." 98 U. S. 621; 2 Nat. Bank Cas. 12; sub nom., National Bank v. Matthews. The same doctrine is enunciated in the following cases: Leazure v. Hillegas, 7 Serg. & Rawle, 320; Goundie v. North Water Co., 7 Penn. St. 233; Silver Lake Bank v. North, 4 Johns. Ch. 370; McIndoe v. City of St. Louis, 10 Mo. 577; Chambers v. City of St. Louis, 29 id. 543; Land v. Coffman, 50 id. 243; Runyan v. Coster, 14 Pet. 122; Wroten's Assignee v. Armat, 7 Rep. 797. We have been cited to cases decided by several State courts, giving a different construction to the act of Congress in question from that put upon it by the Supreme Court of the United States in the case of Matthews v. Skinker. We cannot however follow them, being bound by the decision of the latter court, the peculiar province of which is to determine all questions involving a construction of the laws of Congress. Adopting that construction, we are of the opinion that plaintiffs, as creditors of Bragg, can assert no claim in the garnishment proceedings to the proceeds of the sale of the mortgaged property so far as they have been applied to the payment of the notes held by the National Exchange Bank and indorsed by H. C. Ewing. A large surplus of the proceeds of the sale of the Bragg Hall property remains after the payment of said demand, which is claimed by plaintiffs and also by the beneficiaries in the deed of trust executed by plaintiffs and by Bragg and wife, and the only question left is as to its disposition. The deeds of trust executed by Bragg and wife and Thornton and wife were made to indemnify the sureties on the notes mentioned, Ewing, Crow and Berry. It was alleged and proved that said debts were contracted before the date of the notes, for furnishing and finishing the third story of "Bragg's Hall,” and that Thornton v. National Exchange Bank. the sureties were bound for said debts, before Thornton and Bragg assumed them; that said sureties were agents or trustees of an association which had taken a fifteen-year lease from Bragg on the third story of the hall; that they executed a deed of trust conveying said interest to one Lamkin to secure said indebtedness; that Lamkin advertised the same for sale under the deed of trust, and by arrangement of all the parties, Bragg and Thornton purchased said interest and assumed the debts for which the trust deed was executed, and that this was the only consideration for their · assumption of said indebtedness. Because the lease was extinguished by the sale under the deed of trust to P. T. Miller it is contended the sureties again became bound as principals for the said debts. Upon what principle such a result is predicated we are unable to perceive. No deceit or fraud was alleged against the sureties. Bragg and Thornton were aware of the existence of the deed of trust when they purchased the lease. Mrs. Thornton also knew of its existence, for it was expressly mentioned in the deed from Bragg and wife, conveying to her one undivided half of the premises. There was no warranty of the title acquired by Bragg and Thornton to the leasehold interest, and no obligation express or implied that if the lease should be extinguished by a sale under the deed of trust the sureties would be responsible for the debts assumed by Bragg and Thornton. The consideration they received for assuming the debt, was the fifteen-year lease, which they took subject to the deed of trust, and therefore took the risk of an extinguishment of the lease by a sale under the deed of trust. Nor were these sureties affected or bound by the equities between Bragg and Mrs. Thornton in regard to the agreement of Bragg with her to apply the proceeds of certain notes assigned to him by her to the debt secured by said deed of trust. These notes were assigned to him as part payment of the money she was to pay for one-half of the "Bragg Hall" property, and he agreed with her to apply the proceeds in payment of said $3,000 indebtedness to the National Exchange Bank. It is also urged by Thornton and wife that the deed of trust executed by them to indemnify the sureties did not convey her interest in "Bragg Hall," because in the acknowledgment Thornton v. National Exchange Bank it was stated that she relinquished her dower, and her name does not appear in the body of the deed, as a grantor therein. And Shroyer v. Nickell, 55 Mo. 264, and Whiteley v. Stewart, 63 id. 360, are cited as sustaining that view. In the body of the deed she is named as one of the parties of the first part, and the parties of the first part are named as the grantors. Shroyer v. Nickell was a case in which an equitable defense to an action of ejectment was pleaded, and the facts relied upon were that Shroyer and wife had, by mistake, made a conveyance of another tract, intending to convey the land in dispute, and defendant asked a reformation of the deed against the wife. The court decided that as the property was not separate property of Mrs. Shroyer this could not be done, and the case has no bearing upon the question. In Whiteley v. Stewart, the commencement of the deed named Whiteley and wife as parties of the first part, but in the body of the deed, the husband alone was named as grantor and the name of the wife did not again appear except in their signatures to the deed. The court expressly held that the deed showed upon its face that she never granted the land, but her husband was sole grantor. In McDaniel v. Priest, 12 Mo. 545, it was decided that "where a certificate of acknowledgment upon a deed executed by husband and wife to convey lands of the wife, stated that the wife upon separate examination acknowledged that she executed the deed and relinquished her dower in the lands mentioned in the deed," the deed would not pass a fee-simple interest of the wife. But in Chauvin v. Wagner, 18 Mo. 546, this case was overruled, and Chauvin v. Wagner has been followed in Delassus v. Poston, 19 Mo. 425; Thomas v. Meier, 18 id. 573; Perkins v. Carter, 20 id. 465, and Thomas v. Hesse, 34 id. 13; 84 Am. Dec. 66. Plaintiffs in error rely upon the doctrine that "a security will be subrogated to the rights of the creditor upon paying his principal's debt, and not until then." And their counsel quotes with emphasis the language of the court in Hearne v. Keath, 63 Mo. 84, to the effect that the principal does not become a debtor to the surety, until the latter has paid the debt," and until then his demand has no existence." There can be no doubt of that proposition, but it is equally well settled that securities taken by the |