Slade v. Squier

Houghton, J.

(concurring):

1 concur in a reversal of the judgment for the reasons stated by Mr..Justice Laughlin; but I am of opinion that, as against the bank, which should be made a defendant as the real party in interest, the plaintiff has no cause of action whatever. The exemption of a national bank from the Usury Law applies to collateral given after the indebtedness is incurred as well as to. original indebtedness. (Schuyler Nat. Bank v. Gadsden, 191 U. S. 451.) Therefore, if the mortgage was in fact usurious and is to be governed by the Usury Law of New York State, still an action to set it aside for usury will not lie. But the mortgage sought to be set aside was given upon real property in the State of Rhode Island, which has no usury- law. The fact that the mortgage was negotiated in the State of New York did not render it usurious if it was not usurious in the State where the real property upon which it is a lien was situated. The contract of creatiúg a lien on real property must be construed according to the laws, of the State where such real property. is located. (Stumpf v. Hallahan, 101 App. Div. 383; affd., 185 N. Y. 550.) It would thus appear that the plaintiff has no cause of action in any event.