Carroll v. Turner

McCay, Judge. The whole of the doctrine as to the effect of one man’s standing. by and seeing another make title, or give a mortgage on his, the bystander’s, land, turns on the idea of fraud, deception. He, the bystander, is estopped, because it would be a fraud on the grantee for him to set up his legal rights under the circumstances. Rut in this case the grantee got full notice of the right of the claimant, at least so far as that he still held the title, and had not been paid the purchase money. So far as this interest is concerned the fraud, if any, seems to have been in the other, for, with a full knowledge that the land was not paid for in full he took the mortgage on the idea that by this device he was getting the advantage of the old man. There is no estoppel, so far as the legal right to the land is concerned, and under the pleadings as they stood, the land was not subject. The land must be paid for before it is, as such, subject to the disposition of the vendee who only gets a bond for titles. Doubtless the holder of this mortgage has equitable rights, and we agree that after the vendor is paid his money, the balance of the purchase money, anything left, would be subject to the mortgage, for one can mortgage an equity. Judgment reversed.