(concurring). The action was brought to foreclose a mortgage for $110,000 executed by George F. Johnson, who then owned the premises. One Albert Joske subsequently became the owner of the premises, and at the instance of appellant, Dewey, he conveyed the same to defendant Kellogg as security for money loaned by Kellogg to Dewey in Massachussetts and payable there, but at a rate of interest which would make the loan usurious and void under the laws of New York. After defendant Kellogg obtained the legal title, and before the foreclosure action was commenced, he conveyed part of the premises to the defendant Kroeger Piano Company. The decree directed the sale of that part of the premises the title to which remained in Kellogg, designated as “Parcel No. 1,” first. The sale resulted in a surplus. The referee found that parcel No. 1 was entitled to $38,547.39 of the surplus and parcel No. 2 to $1,752.20 thereof. There is no controversy over the division of the surplus between the respective parcels; but both the appellant, Dewey, and the defendant Kellogg claim that part of the surplus arising on the sale of parcel No. 1. At the time the foreclosure action was commenced an action brought by judgment creditors of Dewey against Kellogg, Dewey, and others to have the deed to Kellogg declared a mortgage was pending; and after the sale, but before the surplus money proceedings were instituted, judgment had been duly entered in that action declaring that the deed to Kellogg “was as between Kellogg and Dewey, a mortgage, and that Dewey was the owner of parcel No. 1.”
In the surplus preceding Kellogg claimed the fund, not by virtue of ownership of the title, but by virtue of the lien of the judgment in effect declaring his deed a mortgage. Dewey contested this claim on the part of Kellogg upon the ground that he was the owner of parcel No. 1, and that the loan to Kellogg to secure which he received the deed was usurious, and that therefore the conveyance to him was void under our statute, which declares, among other things, that:
“All conveyances whereupon or whereby there shall be reserved or taken, or secured or agreed to be reserved or taken, a greater sum or greater value, for the loan or forbearance of any money, goods or other things in action, than is above prescribed shall be void.” 1 Rev. Sri (1st Ed.) p. 771, pt. 2, c. 4, tit. 3, § 1, as amended by Laws 1879, p. 598, c. 538; 1 Rev. St. (1st Ed.) p. 772, pt. 2, c. 4, tit. 3, § 5, as amended by Laws 1837, p. 486, c. 430.
I agree with the learned referee that the validity of the notes to secure which the mortgage was given is governed by the law of Massachusetts, and that, being valid, these payments could be enforced *72here; but I am of opinion that the validity of the deed as security for the indebtedness is to be determined by our statute. On this point the authority of Chapman v. Robertson, 6 Paige, 627, has not, so far as I have been able to discover, been overruled, criticised, or questioned. See, also, McGoon v. Scales, 9 Wall. (U. S.) 23,19 L. Ed. 545; Boyce v. City of St. Louis, 29 Barb. (N. Y.) 650; Goddard v. Sawyer, 9 Allen (Mass.) 78.
The decree establishing that the deed was given as security for the payment of money, and is in fact a mortgage, is not contained in the record; nor are the pleadings in that action in the record before us. It appears that both claimants to the fund were parties to that action, and are therefore bound by the judgment. Probably the amount for which it was decreed that the deed was given as security was not involved in that action, but it may well be that the deed was held to be valid as security for some indebtedness, and upon this record it cannot be said that it was not so held. It may fairly be inferred that the nature and validity of the instrument was adjudicated in that action. The record shows that Kellogg stands upon the judgment therein. In surplus money proceedings there are no pleadings to embarrass claimants, and the rights of a claimant must be determined on the entire record. I cannot, upon this record, say that Dewey is not precluded by the judgment from questioning the validity of the deed as security, and therefore I concur for affirmance; but, if the record fairly presented the question as to whether a mortgage upon real estate in New York could be upheld as security for a loan made elsewhere, at a rate of interest which would be usurious here, I would be disposed to answer it in the negative.
CLARKE, J., concurs.