The opinion of the court was delivered by

Both parties in this case claim title to the premises sued for, under Daniel Tarbell, jr. The plaintiffs have the elder mortgage, and Downer the junior mortgage. The plaintiffs are a banking institution, organized under the general banking law of 1851, and before this suit was commenced they had assigned to the state treasurer the bond and mortgage of Tarbell, under the 7th section of the banking law, which provides that for a certain amount, instead of stocks, the bank may secure the payment of one-half of their issues, by transferring to the treasurer of the state bonds and mortgages. The 9th section provides for the reassignment of any bonds and mortgages, by the treasurer, to the bank, upon other bonds and mortgages, or public stocks, being substituted, and, if the principal of the bonds are paid to the treasurer, he may pay the same to the bank, on receiving other bonds and mortgages. The 11th section vests the power of sale of the bonds and mortgages, if need be, in the treasurer. We think it is clear that the assignment vests in the treasurer the legal title to the bond and mortgage, though in trust, aud the object of the statute requires it should be so. It must follow that, until a re-assignment, *638the plaintiffs cannot maintain this action, for want of title. No question has been raised as to the want of sufficiency in the form of the assignment.

Judgment of the court below affirmed.