were the only grounds of jurisdiction." Caufman v. Sayre, 2 B. Mon. (Ky.) 202. Cf. Owings v. Beall, 3 Litt. (Ky) 103, 107.

18 Caufman v. Sayre, 2 B. Mon. (Ky.) 202, the court saying: "A bill for ascertaining and settling the amount due, and for both for closure and sale, is personal as well as local; and, therefore, in our opinion, either the person of a necessary defendant or the locality of the mortgaged premises may give jurisdietion in such a suit. It cannot be known until the final decree, whether the suit may not produce the debt without a sale of the mortgaged estate."

19 Alabama: Code, sec. 3421, construed in Reeves v. Brown, 103 Ala. 35 South. Rep. 824, where the court says: "When a bill is filed for the foreclosure of a mortgage on real estate, which is situated in one county, and the mortgagor resides in another, under section 8481 of the Code, the chancery court of either district or county,-the one where the mortgagor resides, or the one where the real estate or a material portion thereof is situated,—has jurisdiction, and the complainant may elect, at his pleasure in which of the two districts or counties he will file his bill. Ashurst v. Gibson, 57 Ala. 586; Harwell v. Lehman, 72 Ala. 345." Iowa: Cole v. Conner, 10 Iowa, 399; Finnagan v. Manchester, 12 Iowa, 521. The statutes has been changed since these cases were decided so that the action is now purely local. See post, p. Tennessee: Code (1884), sec. 3515. This section permits the action to be brought in the county where the land lies, but it does not repeal the chancery rule which authorized the proceeding where the mortgagor could be found. Texas: Sayles' Civil Stat. vol. 1, sec. 1198, subdiv. 11; Kinney v. MoLeod, 9 Tex. 78. It seems that in Texas foreclosure may also be brought in the county where the note is payable. Brigham v. Thompson, 12 Tex. Civ. App. 562, 34 S. W. Rep. 858.

29 Joiner v. Perkins, 5 Tex. 300.

11 See, however, Edminster v. Higgins, 6 Neb. 365, distinguishing this from an equitable mortgage. * Brigham v. Thompson, 12 Tex. Civ. App. 562, 34 S. W. Rep. 358.

23 Iowa, L. & T. Co. v. Day, 63 Iowa, 459; Equitable Life Ins. Co. v. Gleason, 56 Iowa, 47. Of. Brecken. ridge v. Brown, 9 Iowa, 396. A statute authorizing the action to be brought where the note is payable

where the mortgagor was not joined and the defendant, who was an assuming purchaser, resided in another county than that in which the land lay, it was held that the action could not be brought in the latter county," and the same was decided where the mortgaged property included both real estate and chattels.25 On the other hand, where the service was by publication only, the suit was required to be instituted in the county which was the situs of the mortgaged premises. 26 In Kentucky the statute making the venue local ex. cepts decedents' mortgages, but this will not permit the institution of the suit in another county than that in which the land lies, unless there is also an administration suit pending there."7

The Same Continued-Venue made Local, but not Jurisdictional.-In some states the effect of legislation has been to render the foreclosure suit nominally local but also to permit the venue to be changed,28 or the suit to proceed in another county than that of the res, unless such change is applied for.29 Under statutes of this class the venue is not, governs though when the mortgage was executed the venue was local only; since the change does not substantially affect the rights of parties. Equitable Life Ins. Co. v. Gleason, 56 Iowa, 47. 24 Higgins v. Frederick, 82 Tex. 283. 25 Ashurst v. Gibson, 57 Ala. 584.

26 Iowa L. & T. Co. v. Day, 68 Iowa, 459.

27 Shield v. Yellman, 100 Ky. 655, the court saying: "It is manifest that if an action was pending to settle the estate of a deceased person, and mortgage liens were set up, the court, where the personal representative was qualified, alone having jurisdiction of such action, must also have jurisdiction to decree a sale of the mortgaged property, although it may be situated in another county. Hence the necessity for an exception to the general rule. In this case there was no personal representative and no suit to settle the estate. Moreover, it was a suit to sell the bus. band's interest as well as that of his wife's, and for his debt, and we do not see how in a suit in Fayette county his interest could have been sold, the action as to him being clearly local."

26 Colorado: Fletcher v. Stowell, 17 Colo. 94, con. struing Colorado Code, secs. 25, 29. Missouri: Chouteau v. Allen, 70 Mo. 290, 354. New Hampshire: Tucker v. Lake (N. H.), 29 Atl. Rep. 406. New York: Code Civil Procedure, sec. 987.

29 Colorado: Fletcher v. Stowell, 17 Colo. 94. New York: March v. Lowry, 26 Barb. (N. Y.) 197, 16 How. Pr. 41, construing Old New York Code, sec. 126. North Carolina: Falls of Neuse Mfg. Co. v. Brower, 105 N. Car. 440, construing Code, secs. 190 and 195. North Dakota: Code, sec. 5244. So in old Dakota territory. See Territory v. Judge, 5 Dak. 375. South Carolina: Trapier v. Waldo, 16 S. Car. 276, construing Code, sec. 149. Wisconsin: Pereles v. Albert, 12 Wis. 666. The foreclosure suit is now purely local in Wisconsin.

32

of course, jurisdictional.30 Even though the proceeding be brought in another county than that specified in the statute the defect will be waived by the mortgagor's default, 31 or, in case he appear, by pleading to the merits, or even by failing to ask for a transfer of the cause to the proper county,33 and if such transfer is made the defect is likewise cured.34 Some of the statutes, while providing for a local venue, employ language that s permissive only.35

Transfer of Cause to Another County.Under a statute providing for a change of venue upon the application of the mortgagor, the fact that other points are involved than those relating to the land itself will not authorize a denial of the request; and even where the venue is fixed and jurisdictional but the land lies in several counties, and it is shown that one of them would afford the most convenient place for the hearing, it is reversible error to refuse a change to such country. It is likewise proper to grant a change of verue where it is shown by an undisputed affidavit that the judge to whom the application is made is a material witness for the applicant. Under the former Iowa stat

37

30 Fletcher v. Stowell, 17 Colo. 94.

31 Colorado: Fletcher v. Stowell, 17 Colo. 94. Dakota: Territory v. Judge, 5 Dak. 275. Iowa: McDonald v. Second Nat. Bank, 106 Iowa, 517.

32 Chouteau v. Allen, 70 Mo. 290, the court saying: "After a court, which has general jurisdiction over a certain class of causes, proceeds without objection to the hearing and determination of a cause belonging to that class, it is quite too late in this court to raise objections to the irregular exercise of such jurisdiction; such objections, even if originally valid, lose their force when waived by pleading to the merits."

33 Trapier v. Waldo, 16 S. Car. 276; March v. Lowry, 16 How. Pr. (N. Y.) 71; Pereles v. Aloert, 12 Wis. 666; Lane v. Burdick, 17 Wis. 92; O'Neil v. O'Neil, 54 Cal. 187; Gill v. Bradley, 21 Minn. 15; Beardsley v. Dickerson, 4 How. Pr. (N. Y.) 81.

34 Tucker v. Lake (N. H.). 29 Atl. Rep. 406.

35 Missouri: 2 Wagner's Stat. sec. 4, p. 1005, construed in Chouteau v. Allen, 70 Mo. 290, 354. Tennessee: Code (1884), sec. 3515. Texas: Sayles' Tex. Civ. Stat. sec. 1181, subdiv. 11.

36 Falls of Neuse Mfg. Co. v. Brower, 105 N. Car., 440.

37 Thompson v. Brandt, 98 Cal. 155.

38 Spencer v. Iowa Mortg. Co. (Kan. App.), 50 Pac. Rep. 1094, the court saying: "The action was begun in Decatur county, and on application of the plaintiff a change of venue was granted to Thomas

ute, which authorized the action to be brought either in the county where the land lay or in that where the note was payable, it was held that a suit in the latter county could not be transferred to the former unless the mortgagee should elect to proceed for a foreclosure only.39 So the fact that a contract embodies a mortgage will not entitle the defendant in action on such contract, but not seeking foreclosure, to a transfer to the county where the mortgaged land is located.40 The transfer of a foreclosure suit to another county is not authorized by a statute providing that special terms may be adjourned to the chambers of any justice of the district, and such transfer is erroneous though by a further adjournment the hearing finally takes place in the proper county. While the denial of a change of venue is not always discretionary 2 the granting of an application therefore is, in some jurisdictions at least, not subject to review by an appellate court.48 But the intention of the trial court to make

41

not be sustained. The showing made for the change of venue was much stronger than in the case of Gray v. Crockett, 35 Kan. 66, 10 Pac. Rep. 452, relied on by counsel for plaintiff in error, and the order changing the venue was sustained by the supreme court in that case. That affidavit did disclose the facts that the plaintiff expected to prove by the district judge; and, while it is true that the examination of the judge as a witness did disclose that he was not possessed of knowledge of all of the facts set forth in the application for the change, yet he did te-tify to some facts material to the plaintiff in the trial of the case."

39 It will be observed that the note was payable, and therefore suable, in Linn county, whilst a suit for the foreclosure of the mortgage, might, at least, be brought in Jones. Passing the questions upon the petition, as to whether it is in law or equity, and the two causes of action set forth, with a reference to the case of Kramer v. Rebman, ante, 114, we think there was no error in overruling the motion for a change of venue. Both causes of action did not belong to Jones county any more than to Linn, even admitting that the second belonged to Jones. The motion should have been that the plaintiff elect upon which to proceed, and if she elected the bill to foreclose a motion for a change would have been proper. The court could not send both to Jones." Breckinridge v. Brown, 9 Iowa, 896.

40 Max v. Harris (N. Car.), 84 S. E. Rep. 437. 41 Gould v. Bennett, 59 N. Y. 324.

42 Thompson v. Brandt, 98 Cal. 155; Falls of Neuse Mfg. Co. v. Brower, 105 N. Car. 440.

48 Tucker v. Lake (N. H.), 2 Atl. Rep. 406, the court says: "Whether justice required the order

such an order will not be ir ferred from mere terms of the order of reference to one who resides in another county."

Venue made Local and Jurisdictional.The tendency of legislation in the United States has been steadily towards restricting the venue of the foreclosure suit to the county which forms the situs of the mortgaged land, and such is now the law in a majority of our jurisdictions, and the rule has been so extended as to include the foreclosure of a vendor's lien46 and a land contract ;47 indeed, so complete has been the change from its original character in this regard that a New York judge, losing sight apparently of its history, declared of the foreclosure action as early as 1855 that "it is in its nature local. "'48 As we have already seen,49 such was not its nature once, and so far as this is now the case it has become so by statutes, 50 which generally specify the county where the mortgaged property or "a part thereof" is located, as the only proper place for bringing the suit."1

The Same Continued.-The result of such enactments has been to render the venue of foreclosure not only local but jurisdictional. 52 The pendency of the suit in any other county than that in which the land lies is forbidden,53 44 Wheeler v. Maitland, 12 How. Prac. (N. Y.) 35. 45 So also in Ontario. See Rules of Practice, 529; Hunter on Foreclosure (1899), p. 17, changing the doctrine of Seymour v. DeMarsh, 11 Ont. Pr. Rep. 472.

46 Southern Pac. R. Co. v. Pixley, 103 Cal. 118. 47 Fraley v. March, 68 N. Car. 160.

48 Wheeler v. Maitland, 12 How. Pr. (N. Y.) 35, per Peabody, J.

49 See ante, paragraph first of this article.

40 McDonald v. Second Nat. Bank, 106 Iowa, 517, 523.

1 See Wagener v. Swygert, 30 S. Car. 296, 302; Falls of Neuse Mfg. Co. v. Brower, 105 N. Car. 440; cases cited in note 1 supra.

52 California: Rogers v. Cady, 104 Cal. 2-8; Fritts v. Camp, 94 Cal. 393; Campbell v. West, 86 Cal. 197. The early case of Vallejo v. Randall, 5 Cal. 461, to the same effect was overruled in Watts v. White, 13 Cal. 321, which latter was decided, however, before the adoption of the constitutional clause requiring the suit to be brought at the situs of the land. Iowa: See Chadbourne v. Gilman, 29 Iowa 181. But Cf. contra,

and the courts of such other county are without jurisdiction to render a decree therein,54 or even to order a purchaser at the sale in the proper county to show cause why he has failed to comply with his bid.55 Usually an exception is made where the property is located in different counties but this will be discussed in a subsequent section. 56 The objection that the venue is laid in the wrong county is available by way of a motion to dismiss or demurrer,57 since it should appear on the face of the bill;58 when not so appearing, however, it may, under the chancery practice, be raised by a plea in abatement59 and in the Georgia system of foreclosure by rule nisi the objection is not too late when first urged at the trial. 60

Venue of Suit Involving Mortgages in More Than One County.-It has already been shown that the statutes making the foreclosure suit local frequently require it to be brought in the county where the mortgaged land, "or a part thereof," is located. This alternative clause is intended to govern cases where the property is situated in different counties, and as to such the venue may usually be laid in any of them. The same rule has been applied in the foreclosure of deeds intended as a mortgage and relating to parcels of land in more than one county.62 A bill showing such diverse location does not on its face disclose want of jurisdiction though it fail to distinguish between the parts of lands in the respective counties,68 nor is it material that not all of the defendants are residents of the county where the suit is pending.64 In California not only the hearing but the

54 Rogers v. Cady, 104 Cal. 288.

55 Kaminisky v. Trantham, 45 S. Car. 8, 22 S.E. Rep 746. This conclusion was reached notwithstanding a statute which authorized foreclosure action to be heard and determined in chambers and process to be issued therein.

56 See next section.

57 Hartwell v. Lehman, 72 Ala. 344.

58 "It was necessary to give the court jurisdiction to enter this decree of foreclosure, that the plaintiff

65

sale and issuance of the sheriff's deed may take place in one of the several counties containing the land, though it clearly appears that another county would afford the witnesses a more convenient place of trial it is error to refuse a transfer of the cause to such county. In Nova Scotia, also, the sheriff of either of two counties containing adjacent mortgaged lands may conduct the sale and execute the deed,68 but under the Indiana statute, naming the door of the county court house as the place of sale, the lands in the other counties cannot be sold though included in the decree.68

69

The Same Continued.-Mortgage Must be Single, but Lands Need not be Adjacent.The general rule above discussed applies where there is but one mortgage, though the property subject thereto is located in several counties. The rule is inapplicable, however, where the tract in each county is subject to a separate mortgage. The court may be The court may be without jurisdiction to foreclose all such mortgages in a single suit70 and the attempt to do so constitutes at least a misjoinder and the defendant may have all the matter relating to mortgages outside the county stricken from the pleadings." But if there is only one mortgage the tracts covered by it need not usually be contiguous,72 though by

65 Goldtree v. McAlister, 86 Cal. 93. 66 Thompson v. Brandt, 98 Cal. 156.

67 Revised Stats. of Nova Scotia (5th Ser. 1884) ch. 123, § 12.

68 Holmes v. Taylor, 48 Ind. 169.

69 McDonald v. Second Nat. Bank, 106 Iowa, 517; Chadbourne v. Gilman, 29 Iowa, 181.

70 Chadbourne v. Gilman, 29 Iowa, 181.

71 McDonald v. Second Nat. Bank, 106 Iowa, 517. 72 "In the argument it is admitted that a district court under this statute might in one suit decree a sale of land situated partly in two counties, if the premises be in compact form, as a single 40 acre tract, or any number of legal subdivisions adjoining each other, but not if the lands in different counties are separate tracts. By this rule of construction a mort gage upon a strip of land like the right of way of the Northern Pacific Railroad, for instance, extending across the entire territory, and embracing land in twelve counties, might be subject to sale under a decree in a single suit brought in either of the coun ties; and the court authorized to render such a decree would be without jurisdiction to order a sale under a mortgage of a single acre situated in an adjoining county, unless the acre touched other land covered by the same mortgage in the county wherein the court was held. The authorities cited do not require me to recognize any such distinction." Hamford, J., in Steveus v. Ferry, 48 Fed. Rep. 7. Of Prospect Bldg. etc. Assn. v. Russell, W. N. Cas. (Pa.) 360."

Mortgages of Railway and Similar Property. The doctrine that a decree of equitable foreclosure and sale is inoperative beyond the territorial boundaries of the jurisdiction wherein the court sits finds an exception in the case of mortgages on interstate railways and bridges. The exception is based on public policy and considerations derived from the argument ab inconveniente," and while there is some early authority to the contrary76 it is now the prevailing American rule that a mortgage of a line of railway constructed through two or more states may generally be foreclosed in a court where a jurisdiction is limited to one of them" and a sale of the entire line decreed.78 So a federal circuit court has jurisdiction of a suit to foreclose a mortgage of a bridge connecting with a foreign country" or state 80 the state where the court sits. In order to avoid compli

78 Rev. Stats. of Nova Scotia (5th Ser. 1884). ch. 123, § 12.

74 Lomax v. Smyth, 50 Iowa, 223. See this case explained in McDonald v. Second Nat. Bank, 106 Iowa. 517.

75 Muller v. Don, 94 U. S. 444.

76 Eaton, etc. R. Co. v. Hunt, 20 Ind. 457.

77 Federal Cases: Muller v. Dow, 94 U. S. 444; Central Trust Co. v. Wabash, etc. R. Co., 29 Fed. Rep. 618. Illinois: Craft v. Indiana, etc. R. Co., 166 Ill. 580. Pennsylvania: McElrath v. Pittsburg. etc. R. Co., 55 Pa. St. 189, the court saying: "The plaintiff excepts to the report of the master, on the ground that he ommitted to incorporate into the form of a decree submitted by him a provision ordering the trustee in the mortgage to sell the estate and title of the Steubenville Railroad Company in that portion of the railroad situate in the state of West Virginia. With out deciding what estate would pass by the trustee's sale under the mortgage, we are of the opinion that we can, by our decree operating upon the trustee himself, authorize and compel him to sell and convey whatever interest of the railroad company will pass under the terms of the mortgage."

78 Craft v. Indiana, etc. R. Co., 166 Ill. 580.

79 International Bridge & Tramway Co. v. Holland Trust Co., 81 Fed. Rep. 422. Cf. Muller v. Dow, 94 U. S. 444.

cations of title, ancillary proceedings are often instituted in the other jurisdictions to which the line extends, but the bill filed in such a proceeding must be sufficient in itself to constitute a basis for the decree therein, and it is not enough to refer to or incorporate a copy of the bill in the main suit.82 A decree of foreclosure in one state cannot, however, make valid a mortgage on the entire line which fails to conform to the laws of another state through which the line runs. In Canada the courts of one province are without power to decree the sale, as a whole, of a section of railway partly in another province.&

83

CHARLES SUMNER LOBINGIER.

Omaha, Neb.

8 Central Trust Co v. Wabash, etc. R. Co., 29 Fed. Rep. 618; Central Trust Co. v. East Tennessee, etc. R. Co., 60 Fed. Rep. 895; Farmers' Loan & Trust Co. v. Chicago, etc. R. Co., 27 Fed. Rep. 148.

82 Mercantile Trust Co. v. Kanawha, etc. R. Co., 39 Fed. Rep. 337.

83 Pittsburgh & State Line R. Co.'s Appeal, 1 Pa. Sup. Ct. Digest (1886), 146, 4 Atl. Rep. 385.

4 Grey v. Manitoba & N. W. R. Co., App. Cas. (1897) Privy Council, 254, 66 L. J. P. C. (N. S.) 66.

NATIONAL BANKS-PENALTY FOR TAKING USURY-ACCRUAL OF CAUSE OF ACTION. CITIZENS' NATIONAL BANK OF DANVILLE v. FORMAN'S ASSIGNEE.

Court of Appeals of Kentucky, July 7, 1901. 1. The discounting by a national bauk of a note at a usurious rate of interest is merely the "charging" or "reserving" of usury, and not the "taking" or "receiving" of usury; and the debtor's right of action under Rev. St. U. S. § 5198, to recover twice the amount of usurious interest paid, does not accrue when the note is discounted.

2. Where a national bank contracts for interest at a usurious rate, it at once forfeits all interest, and unappropriated payments subsequently made by the debtor must be first applied to the principal, so that while any part of the principal remains unpaid there is no payment of usurious interest, and no right to recover the penalty for taking usury accrues, unless payments made by the debtor are specifically applied by him to usurious interest.

DU RELLE J.: This was an action brought by appellee, as assignee for the benefit of the creditors of W. M. Formap, under section 5198 of the Revised Statutes of the United States, to recover of appellant bank double the amount of certain payments claimed to have been made of usurious interest by Forman to the bank upon a loan by the bank to Forman of $3,117.84 on January 29, 1895.

It appears that on January 29, 1895, Forman executed his note for $3.250, payable to the order of J. M. Farris six months after date, and nego

tiable and payable at appellant bank. Farris was the president of the bank, and in this manner was acting for the bank, using the bank's money. He indorsed the note to the bank, and $3.117.84 was placed to his credit, for which sum Farris gave Forman his check, and that amount was placed to Forman's credit. Considerable argument is devoted by appellant to the question of whether the note was discounted at the bank. It may be conceded that it was. We are unable to see that the question whether the note was discounted cuts any particular figure in determining the questions involved.

The Revised Statutes of the United States provide:

"Sec. 5197. Any association may take, receive, reserve and charge on any loan or discount made, or upon any note, bill of exchange, or other evidence of debt, interest at the rate allowed by the laws of the state, territory, or district where the bank is located, and no more. except that where, by the laws of any state, a different rate is limited for banks of issue organized under state laws, the rate so limited shall be allowed for associations organized or existing in any such state under this title. When no rate is fixed by the laws of the state or territory or district, the bank may take, receive, reserve or charge a rate not exceeding seven per centum, and such interest may be taken in advance, reckoning the days for which the note, bill or other evidence of debt is to run.

*

"Sec. 5198. The taking, receiving, reserving or charging a rate of interest greater than is allowed by the preceding section, when knowingly done, shall be deemed a forfeiture of the entire interest which the note, bill or other evidence of debt carries with it, or which has been agreed to be paid thereon. In case a greater rate of interest has been paid the person by whom it has been paid or his legal representatives, may recover back, in an action in the nature of an action of debt, twice the amount of interest thus paid from the association, taking or receiving the same, provided such action is commenced within two years from the time the usurious transaction occurred.

*

The first question is whether the discounting of the note, and the deduction from its face of 8 per cent. for six months, was a payment by Forman on January 29, 1895, of that amount of interest to the bank. On behalf of the bank it is earnestly insisted that it was a payment. As matter of course, there was no physical payment of money by Forman to the bank. What he did was to execute and deliver his note for $3,250 to the order of Farris, and to receive or have placed to his credit the sum of $3,117.84. If this constitutes an actual payment by him of interest, as such, at 8 per cent., in advance, he was entitled to bring suit the next day for twice the amount of interest thus paid, and consequently his right of action was barred when he brought the suit on September 3, 1897. On the other hand, if, as contended