Peers v. McLaughlin
Before: Haven
Synopsis
Equitable Mortgage — Lien for Purchase-money — Mortgage by Natural Guardian of Minors. — A mortgage signed by a father for himself and as guardian of his minor children, given to secure the balance of the purchase price of land conveyed to himself and them, may be enforced as an equitable mortgage upon the whole land, and the interest of the minors acquired under the deed is subject to its lien, though it does not appear whether any portion of the money paid belonged to the minors, or whether the father was or was not in fact the guardian of their estates.
Id. — Mortgage Defectively Executed. — A mortgage defectively executed, or an imperfect attempt to create a mortgage upon specific property for the purpose of securing a debt, creates in equity a specific lien upon the property intended to be mortgaged.
Id. — Maxim of Equity. — Equity treats that as done which the parties agreed to have done, and which ought to have been done.
Id.—■ Taker of Benefit must Take Burden.—No person, whether a minor or adult, can apply to his own use the beneficial part of a transaction and reject its burdens.
De Haven, J. The court below adjudged that defendant Thomas McLaughlin is indebted to the plaintiffs in the sum of $1,615.24, and that said indebtedness is a lien upon the land described in the complaint, and directed that it be sold to satisfy said lien. All of the defendants appeal from this judgment. There is no bill of exceptions in the record. The findings show the following facts: The defendants John Thomas Edward McLaughlin and Margaret McLaughlin are minor chil[296]dren of. the defendant Thomas McLaughlin. In March, 1884, the plaintiffs and the defendant Thomas McLaughlin made an agreement, the plaintiffs to convey to said Thomas McLaughlin and his said minor children the land described in the complaint for the sum of two thousand five hundred dollars, and at the same time the defendant Thomas McLaughlin paid to plaintiffs on account of said purchase, the sum of thirteen hundred dollars, and the balance of twelve hundred dollars was to be paid October 1, 1884. On October 10th following, this balance was still unpaid, and it was then agreed between plaintiffs and the defendant Thomas McLaughlin, “ for himself and his said children.....that plaintiffs should execute a deed .... of said .... land to Thomas McLaughlin and his said children, and that the said balance of said purchase price .... should be secured by a mortgage upon said lot of land.”
Thereupon plaintiffs conveyed said land to the defendant McLaughlin and his said minor children, at the same time receiving back a note for twelve hundred dollars, and a mortgage to secure it upon the land conveyed. The mortgage recited that “Thomas McLaughlin, John Thomas Edward McLaughlin and Margaret McLaughlin ” are parties thereto of the first part, and was signed,—
“ Thomas McLaughlin. [Seal]
“ Thomas McLaughlin, [Seal]
“Guardian of the persons and Estates of John Thomas Edward McLaughlin and Margaret McLaughlin, minors.”
The note was also signed by Thomas McLaughlin for himself, and also, below, as guardian for the said minors.
The court further finds “that said deed and mortgage were drawn by one Oliver Walcott, an attorney at law, who represented to said plaintiffs that said mortgage was sufficient to create a lien for said sum of twelve hundred dollars, upon the interests of said children as well as upon the interest of said Thomas McLaughlin [297]
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