I am of the opinion that the appeal is without merit. The plaintiffs’ mortgage was a valid lien upon all the property of the mortgagors (the railroad company) embraced within the terms of the mortgage, whether owned by the company at its date or whether subsequently acquired. It is unnecessary to go the length of the proposition (though I think it might be successfully maintained) that the plaintiffs, as mortgagees of the franchises of the corporation, are entitled to the subsequently acquired property as an incident to the franchise mortgaged, and as an accession to the subject of the mortgage.
Be this as it may, in equity the mortgage of the subsequently acquired property is valid, and may be enforced against the mortgagors and all other persons, except purchasers for value and without notice.
• The covenant for further assurance, contained in the plaintiffs’ mortgage, operates as ' an equitable lien upon the after-acquired property.
The trustees in the second mortgage (Miller and Sampson) and Watson were not bona fide purchasers nor entitled to preference. These trustees took their mortgages expressly subject to the plaintiffs’ mortgage, and Watson, at most, had but a general lien by judgment on the equity of redemption. It is clear, as to the mortgagors, that the plaintiffs’ mortgage is a lien in equity on all the property owned at its date or afterward acquired, and the defendant Watson, whether he claimed as a bondholder under the second mortgage, or. as a judgment creditor, can have no greater right, as against the plaintiff, than the railroad company (the mortgagors) have.
The trustees of the bondholders under the second mortgage, beside having notice of the prior mortgage, took their mortgages subject thereto, and a lien by judgment is always subordinate to a prior equitable lien, whether of record or not, or executed or not. The plaintiffs’ mortgage was, in equity, a specific lien on thejeal estate of the company, and a specific equitable lien upon land is entitled to a preference *109over a subsequent legal lien by judgment. If, as is now asserted, the plaintiffs’ mortgage never was a lien on the lands acquired by the company at Corning, for the erection of a machine shop and depot, the judgment appealed from could do him no harm. But I think the judge rightly decided that the plaintiffs’ mortgage was a lien.
The legal presumption is that these iands were necessary for the use of the company, and were properly acquired; and, if acquired for its use, they became annexed to the franchise and inseparable from it.
It was alleged, in the answer of the defendant Watson, and proved on the trial, that some of the bonds secured by the plaintiffs’ mortgage were negotiated and sold by the company at less than par, and, for this reason, it is urged the mortgage is usurious and void. The objection is susceptible of various answers, but a conclusive one is that the mortgage, being made by a corporation as the borrower, the statutes of usury have no application to it.
In Room agt. Butterfield and others, decided at the present term of the court, it was held that the act of April 6th, 1850 (laws of 1850, chap. 172), prohibiting corporations from interposing the defense of usury, has the effect to except from the operation of the statutes of usury contracts of corporations stipulating to pay interest.
This being the construction given to the act mentioned, the contract in this case is not impeachable for usury.
If there is no statutp limiting the rate of interest upon loans to corporations, illegality or taint of usury cannot be imputed to their contracts as borrowers.
The judgment should be affirmed.
Note.—We received this opinion from Judge Fancheb, who was counsel in the case, stating that it had never been published, but touches some important questions of railroad law. It has so often been asked for, that I think it should be published in your reports.—Rep.