Jac. 121; New Ipswich Factory v. Batchelder, 3 N. H. 190; United States v. Appleton, 1 Sumner 492.

The two lots in this case originally belonged to the one owner; the lot on the westerly side of Lexington avenue extending back 80 feet, so as to meet the rear of the lot, on the northerly side of Fiftieth street, along which lot the rear of the Lexington street lot extended for 20 feet. On the Fiftieth street lot the then owner erected a building covering the whole of that lot as it now exists, in the rear of which lot he placed windows for light and air overlooking the rear of the Lexington street lot, and on the Lexington street lot he erected a building 60 feet deep for which the rear of the lot for the remaining 20 feet served as a yard, which yard was overlooked by the windows of the building on the Fiftieth street lot and in the yard he erected a fire-escape for the joint use of the two buildings.

The two lots were severed by the foreclosure of mortgages given by the owner and the sale of the lots, as separate lots; under which sales the plaintiff has become the owner of the Fiftieth street lot and the defendant of the Lexington avenue lot. The defendant claiming the right to the exclusive use of the yard, has erected a wooden fence, by which he has cut the plaintiff off from the use and enjoyment of the windows in the rear of the building on the Fiftieth street lot, and also from the use of the fire-escape.

The question in the case is, whether the plaintiff at the severance of the two lots had a right to the light and air from the windows. in the rear of his building and to the use of the fire-escape, of which the defendant could not deprive him, and it appears to me that the case comes clearly within the rule illustrated by SELDEN, J., in Lampman v. Mills, 21 N. Y. 511. "If," says Judge SELDEN, "both proprietors obtained their title from a common. source, the same grantor having conveyed the tenement with the windows to one and the ground overlooked to another, the windows cannot be obstructed, and the reason is, that the relative qualities of the two tenements must be considered as fixed at the time of their severance; each retains, as between it and the other, the properties then visibly attached to it, and neither party has the right afterwards to change them;" for which he relies on Cox v. Matthews, Ventris 237, a case which fully bears out what he states.

The rule of the common law is, says Judge SELDEN, that where the owner of two tenements sells one of them, the purchaser takes

the tenement sold with all the benefits and burdens which appear at the time of the sale to belong to it as between it and the property which the vendor retains; which he adds is one of the recognised modes by which an easement or servitude is created. If the burden he remarks is open and visible, the purchaser takes the property with the servitude upon it. The parties are presumed to contract in reference to the condition of the property at the time of the sale, and neither has the right by altering arrangements then openly existing to change materially the relative value of the respective parts.

In the subsequent case of Butterworth v. Crawford, 46 N. Y. 349, the judgment of this court was reversed solely upon the ground that the servitude was not open and visible.

The rule above stated was not questioned; but the decision was put upon the ground that there must be some mark or sign, which would indicate the existence of the servitude to one reasonably familiar with the subject, upon an inspection of the premises, for in the present case the right which was claimed was open and visible, as it was the windows in the rear of the house on the Fiftieth street lot and the fire-escape which had been built for the joint use of both houses.

In Robbins v. Barnes, Hob. 131, the two adjoining houses were so built that one overhung a portion of the other, and although this overhanging was originally wrongful, yet as both houses afterwards became the property of one person and through him were divided, it was held that they were taken as they were at the time of the conveyance by which they were severed and that the owner of the house which overhung was entitled upon taking it down to rebuild the new house so as to overhang in the same manner, and it has been recognised in several cases, that if one owning a house with windows looking out upon adjoining land of his own, sell such house, he cannot afterwards build upon the adjoining land, so as to stop or obstruct the light of such windows: Story v. Odin, 12 Mass. 157; Grant v. Chase, 17 Id. 443; Cherry v. Klein, 11 Md. 24; 2 Washburn on Real Property 318; 3d ed. pl. 36 and

note.

It can make no difference in the application of this rule whether the severance took place by a direct grant from the owner, or arose by the transfer of his interest upon foreclosure sale, for the reason of the rule applies as much in the one case as in the other. The

question is what each party got on the severance. Did the purchaser of the Lexington avenue lot, who bought as would appear from the pleadings after the plaintiff purchased, take that lot subject to the plaintiff's right to the joint use of the fire-escape and to the use of the windows in the rear of the building for light and air?

In my judgment he did, and I shall therefore deny the motion. to dissolve the injunction.

Supreme Court of Missouri.

ELIZABETII A. MATTHEWS v. THOMAS SKINKER ET AL.

A national bank has no power to take a mortgage as security for the loan of money (except in certain specified cases to secure previously existing debts), and if it does so, the mortgage is void and proceedings upon it will be enjoined. Corporations having only the powers expressly given by their charters or the Jaw under which they are incorporated, or such as are necessarily implied, must follow strictly the mode of action prescribed by the law.

The National Bank Act not only fails to authorize, but expressly prohibits the banks from dealing in real estate securities, except in certain specified cases to secure debts previously due.

ERROR to the St. Louis Circuit Court. The facts appear in the opinion, which was delivered by

WAGNER, C. J.-The error complained of in this case is the action of the court in rendering a perpetual injunction restraining the trustees from selling the plaintiff's property. From the record it appears that the plaintiff executed her note payable to Sterling Price & Co. for $15,000, due two years after date, and to secure the payment of the note she made a deed of trust, bearing even date with the same, on certain real estate belonging to her. The note and deed of trust were delivered to Sterling Price & Co., who afterwards transferred them to the Union National Bank of St. Louis, a banking institution organized under the Act of Congress, to secure a loan for $15,000, advanced to Price & Co. by the bank. Price & Co. failing to pay the money advanced on the note and secured by the deed of trust, the trustees at the request of the bank advertised the property for sale, and the plaintiff filed her petition to enjoin the trustees and the bank from proceeding with the sale. Whether the deed of trust in the hands of the bank amounted to a valid security, which could be enforced in payment of the money

advanced, depends upon the construction of the Act of Congress providing for the formation of national banking associations (Rev. St. U. S., p. 998). By section 5, 136 of the Revised Statutes, authority is given to the banking associations "to exercise by its board of directors, or duly authorized officers or agents, subject to law, all such incidental powers as shall be necessary to carry on the business of banking, by discounting and negotiating promissory notes, drafts, bills of exchange and other evidences of debt; by receiving deposits; by buying and selling exchange, coin and bullion; by loaning money on personal security," &c. By section 5, 137, it is provided that: "A national banking association may purchase, hold and convey real estate for the following purposes, and for no other: 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 at sales under judgments, decrees or mortgages held by the association, or shall purchase to secure debts due to it."

The act, as will be thus seen, gives the association power to loan money on personal security, and to purchase, hold and convey real estate in certain specified cases. The general principles defining the extent and mode of exercise of corporate powers are well settled and have often been passed upon by this court. Corporations have only such powers as are specially given by their charters, or are necessary to carry into effect some specified power: St. Louis v. Russell, 9 Mo. 507; Blair v. Perpetual Ins. Co., 10 Id. 559; Ruggles v. Collier, 43 Id. 353. They must act strictly within the scope of the powers conferred on them by the act calling them into being; and where a grant of power from the legislature is relied on, the mode prescribed in that grant for doing any particular thing must be pursued according to the law creating them: Han. & St. J. Railroad Co. v. Marion County, 36 Mo. 294. The distinction between natural persons and corporations is, that while the former may make any contract not prohibited by law or against public policy, the latter can exercise no powers not expressly conferred on them by their charters: Bank of Louisville v. Young, 37 Mo. 398. In Great Eastern Railway v. Turner, L. R. 8 Ch. App. 152, Lord Chancellor SELBORNE gave a brief and compre

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hensive statement of the law applicable to questions of corporate powers. He said, "The company is a mere abstraction of law. All that it does, all that the law imputes to it as its act, must be that which can be legally done, within the powers vested in it by law. Consequently an act which is ultra vires, and unauthorized, is not an act of the company, in such a sense, as that the consent of the company to that act can be pleaded."

As this case depends upon the interpretation of a national statute we may refer to some of the cases in United States Supreme Court, to see what view that tribunal has taken of the law concerning the powers of corporations.

In the Bank of the United States v. Danbridge, 12 Wheat. 64, the rule is stated to be, that, "whatever may be the implied powers of aggregate corporations by the common law, and the modes by which these powers are to be carried into operation, corporations created by statute must depend, both for their powers and the mode of exercising them, upon the construction of the statute itself."

In Head v. Providence Insurance Co., 2 Cranch 127, Chief Justice MARSHALL defined the powers and limitations of statutory corporations with great clearness, as follows: "Without ascribing to this body, which in its corporate capacity is the mere creature of the act to which it owes its existence, all the qualities and disabilities annexed by the common law to ancient institutions of this sort, it may be correctly said to be precisely what the incorporating act has made it to derive all its powers from that act and to be capable of exerting its faculties only in the manner the act authorizes."

Judge STRONG, now of the Supreme Court of the United States, in delivering the opinion of the Pennsylvania Supreme Court, in a case where the National Banking Law was directly brought in question, said: "The bank is a creature of the act, dependent on it for all its powers, and controlled by all the restrictions which the act imposes :" Venango Nat. Bank v. Taylor, 56 Penn. St. 15.

In all the cases where questions have been raised respecting the powers and liabilities of national banks, it has been invariably held that the banks have only the powers conferred upon them in the act providing for their formation; that from that act they derive their sole authority; and that they must be strictly governed by it and kept within the line of its limitations. In Wiley v. The