Brigham v. Madden

Young, J. If Austin was indebted to Charles when the mortgage was made, the court has found the mortgage was not made to secure Charles against loss on that account. Consequently the latter’s guardian cannot hold the property for that 'purpose; for when the mortgagee has a claim against the mortgagor that is not included in the mortgage indebtedness, he cannot apply the mortgaged property in satisfaction of it without the mortgagor’s consent. Notwithstanding Austin is estopped to deny the validity of this mortgage, his creditors are not, and Austin’s guardian represents them in so far as the property is needed to pay his debts (Cook v. Lee, 72 N. H. 569, 571); and since the property is needed for that purpose, the order must be, Exception overruled. All concurred.