Kingman v. Harmon

Lacey, P. J. There are two questions presented to us for consideration in this case, one of law and one of fact. The first is, can the heirs of William Boylon, deceased, who were minors at the time the mortgages were executed, be heard, in this proceeding to foreclose, in a collateral way, to dispute the validity of the mortgages in question, after having been executed by leave of the County Court? It is contended on the part of the complainant that neither they nor their grantee, Cratty, can dispute the validity of the mortgages for the supposed reason that the question is res adjudicata. We are of opinion that this point of law is not well taken. On the contrary, we must hold that the approval of the County Court of the giving of the mortgages does not have the effect to make the mortgages absolutely valid and binding as against the heirs. We are also of the opinion that the heirs may question the right to execute the mortgages in this proceeding to foreclose, and are not estopped to do so. The approval of the loans by the judge under our statute was ministerial only, and in no way bound the heirs. The statute requires that the heirs be made parties to the proceeding to foreclose, and it is in that proceeding for the first time that they have an opportunity to contest the validity of the mortgage. Kingsbury v. Sperry, 119 Ill. 280, we think fully settles this principle. It is said in that case by the court that “The question is treated in argument as if an order giving leave to a guardian to mortgage, and an order or decree authorizing him to sell the land of his ward are essentially the same in principle. This is plainly a misapprehension. By the sale and confirmation the title of the ward passed absolutely to the purchaser. Before this can be effected the court is required to hear evidence as to the existence of certain facts (see R. S. 1874, Secs. 28, 29, 30, et seq., Chap. 64). We have seen in the case of mortgaging no title passes until the decree of foreclosure, sale and confirmation thereafter. Ho fact is to be adjudicated before making the order. The power is given to the guardian simply, by leave of the court, to perform the ministerial act of borrowing money and executing mortgage. It might have been vested in the guardian absolutely, without consulting the court, or might have been vested in some other individual. Cooley on Con. Lim., 98, 99, et seq. judicial power is only invoked when a foreclosure is sought, and then we have seen the ward has all the rights that he claims that he now has the right to assert.” Thus it will be seen that the heir has a right to test the validity of the mortgage when it is sought to be foreclosed. See Kircher v. Beecher, 41 Ill. 179. We will not go over and recite the evidence concerning the administration of this estate by the guardian, as it would consume much unnecessary time, but will content ourselves in stating generally our conclusions. The mortgaged property was worth about $8,000, and was farm land worth from $400 to $600 per year rental, and there came to the hands of Harmon the sum of $2,850 from the former guardian, and this could have been readily loaned for eight per cent, interest per annum. Inside the nine years all this money was spent, and all the income also spent, and the property mortgaged inside of two years- for nearly $3,000. The guardian allowed the county judge and Mrs. Boylon to spend the money as they pleased. Ho order was ever asked for from the County Court to make expenditures for the wards, but the guardian proceeded to use the money promiscuously for the widow for any purpose she desired. He built a house costing over §1,300 with the money, which the widow occupied, and also furnished large supplies to Mrs. Boylon to carry on business. Ho account was kept with Mrs. Boylon and the wards separately. The purpose of borrowing the money was illegitimate and fraudulent. We have no doubt that the guardian, if he had acted with prudence, could have • supplied the wards with all the assistance necessary, as also Mrs.Boylon, in accordance with the provisions of the will, out of the income, without at all, or at least very slightly, trenching on the estate. The action of the guardian was reckless in the extreme, and appellant, if he had examined appellee’s (Harmon’s) official reports to the County Court, would have discovered it. He had no right to borrow money to invest with the widow, and to pay her debts to lawyers and others, as was done, or to invest in real estate. The guardian, in 1874 and 1875, built a house on a lot, the title of which was in his own name, which he held for the heirs and widow. All this was done without any authority of law, and was not sold till long after this money was borrowed, between April and July 1, 1885. This money should have been used before a resort to borrowing was had. It was illegal to borrow money to pay for supplies for Mrs. Boylon’s saloon and boarding house, and an order should have been obtained from the County Court authorizing disbursements before the money was borrowed. Nothing of the bind was done. Bond v. Lockwood, 33 Ill. 212. The §2,000 was used in paying Cratty’s attorney’s fee of §400, and for his own debt for supplies furnished Mrs. Boylon, §525, and other like things. The position assumed by appellant’s counsel, that Cratty is estopped from denying the validity of the mortgage because-he prepared the petition to the County Court, to procure leave to mortgage, and advised appellant that the guardian had a right to execute the mortgage, is not well taken. Cratty was not, at the time, the attorney of appellant, and there is no evidence that he had any fraudulent intent to mislead the appellant. In addition, he was not, at the time, the owner of the land. If any estoppel existed as to Cratty, it must have become operative at the time, otherwise, if he did any wrong by the advice given, he would have been simply liable in an action on the case for deceit, and he, by such advice, could not affect the title of the minors. As far as Crattv’s action was concerned, the title of the minors was unclouded, and to allow it to become clouded upon a sale to Cratty would, in substance, deprive them of the right to sell to him, or embarrass the sale, which would be an injury to them, who were blameless. This the law would not allow. If the advice of Cratty amounted to anything, it was simply a liability to appellant and could have no place in this investigation. Again, the amount of appellant’s mortgages are held in trust by Cratty for the interest of Mary Hays and the administrator of William Boylon, deceased, the other minor, and if he is estopped Cratty would not be the one to suffer. It is also insisted that whatever money the widow will inherit of the money coming to William Boylon, deceased, in case the mortgages are defeated, should be allowed appellant. This position is not tenable. The interest of William in the purchase money due from Cratty goes to his administrator and not to his heirs, it being personal. The widow’s liability on the note she signed, and her warranty contained in the mortgages, if any, can not be satisfied by attaching her claim as heir against the administrator of her son William, deceased. Her personal liability on her covenants in no way creates a lien in appellant’s favor in her interest as heir of her son’s personal estate. It is not attachable in this proceeding. We hold that, under the evidence, the conveyance from William to Cratty of his interest in the land was valid, and no proof shows that he was not competent to execute the deed. The appellees make the point, in addition to the ones noticed above, that in accordance with the provisions of the will of William Boylon, deceased, the guardian could not mortgage the land, as the land was not to come into possession of the heirs until they were twenty-one years of age. But from what we have above, said it will appear that it is not necessary to pass upon that point. Seeing no error in the record, the decree of the court below is affirmed. Decree affirmed.