253 Mo. 690 | Mo. | 1913
Lead Opinion
On the first of June, 1888, John. Berry, then the owner of the 117 acres of land in DeKalb county, Missouri, involved in this proceeding,, borrowed from William Q. Mintern $1100, due in five years, and to secure the payment thereof executed a deed of trust on said lands. He died in said county in January, 1891, leaving a wife and eight cMldren,, and having first executed his will containing the following three clauses, and constituted his wife and his eldest son, the plaintiff Thomas Berry, executors thereof.
“Sec. 1. To my beloved wife, Clarissa Berry, I give and bequeath all of my personal, estate, with full power to sell and dispose of the same, for the purpose of paying all of the debts owing and contracted by me. ■
“Sec. 2. To my said wife I devise and bequeath full power and control of all lands and real estate of which I may di'e seized, until our youngest child shall become of legal age, and from the issues, rents and profits of said lands, to support and maintain and educate our minor cMldren.
“Sec. 3. Upon our youngest child living becoming of legal age, I give and bequeath all the remainder of my estate, real, personal and mixed, in equal proportion, share and share alike, to the heirs of my body and hers, viz.: Thomas, Louisa, James, Maida, Killian, Charles, Carey and Carrie, and my said wife.”
That equity seeks to prevent the unearned enrichment of one at the expense of another is the motive for an important part of its jurisprudence. [2 Pomeroy’s Equitable Remedies, sec. 920.] This same idea is expressed in the maxim of the common law: , Nemo debet locupletan ex <üteri/us incommodo,” and more fully in the maxim of the civil law: “Jure naturae aequum est, neminem cum alterius detrimento et injuria fieri locupletiorem.” The principle is applied to aid those who have paid the debt of another under circumstances in which equity
In this case the defendants’ intestate furnished the money to be used, and which was used, to pay off a mortgage on the farm of which the plaintiffs were the beneficial owners, one of them, Mr. Thomas Berry, being the executor of his father’s will, through which they all derive their title. They now not only desire to keep the money but they claim that the gift was made in a bungling way, and ask the aid of this court to compel the representatives of the benefactor to put the finishing touches to it by cancelling the mortgage which he received as his security, believing it to be valid. The case presents itself in two questions: (1) Will the defendants be permitted to keep the money, and (2) if they keep it, will the court perfect their title by cancelling and removing the mortgage as a cloud upon it?
There is no intervening interest either legal or equitable to consider. The defendants seek reimbursement out of the same security which was released by
I do not understand it to be questioned that had Mr. Stigall been, in his own right, the owner of the same interest in these lands that he held as trustee for the minor heirs of Berry, he would have had the right to protect himself by paying off the incumbrance and charging the amount so advanced against the land. The plaintiff contends that however kindly equity might look upon the act, if done for himself, and from purely selfish motives, it has no'regard for one who does the same thing in the performance of a duty toward others — that, although he would have acquired merit in equity by protecting himself, he became an intermeddler when he attempted to protect the children whose •only means of sustenance and education had been placed by the law in his keeping. This naturally revolts the sense of right and justice out of which equity jurisprudence proceeds, and lends its remedies to the enforcement of trusts, and the protection of children and others under disability to care for themselves. It is natural that we should expect it to vindicate itself from the aspersion, and we are not disappointed.
It is immaterial in what form the equity in such cases is administered, or what name we adopt to describe it. In a case like the present, when no-intervening interest exists, its object is simply to recover compensation for the.money advanced, out of the estate or property benefited. In cases where interests have intervened paramount at law to the debt of the person so paying an incumbrance, the latter will, under circumstances calling for such rfelief, be revived or considered in force in equity for his benefit, and he will he substituted or subrogated to its lien. The right, as we have seen, will not arise in favor of a mere' volunteer or intermeddler, but it exists in all cases where
In Coleman v. Frazer, 3 Bush (Ky.), 300, the wrongdoer in obtaining a note and mortgage from a person of unsound mind was the applicant for relief on the ground that a part of the money represented by the security had been applied by an attorney representing the lunatic in relieving his lands from certain proper charges and incumbrances. In holding that such relief should be given the court said: “If it is true, as the evidence conduces to prove, that the appellants, or one of them, furnished money which was used by an attorney, acting as such for Frazer, to relieve his estate of an incumbrance, such advancement was not only a sufficient consideration for an implied promise to repay the money advanced, but, by subrogation, at least, entitled the party making the advancement to a charge on the estate, upon the well-established principle that lunatics, like infants and married women, are chargeable as for necessaries, for
In Cutter v. Burroughs, 100 Me. 379, the guardian of a minor sold land which had been devised to another as trustee for the maintenance and education of the ward out of the rents and profits, and in case these were not sufficient out of the items of the estate in the order named. The trust failed by the death of the trustee, but the guardian proceeded to sell certain parcels of the land for the purposes of the trust. These sales were, of course, held to be without authority and void. A part of the purchase price, was, however, applied to the purposes of the trust, and on one of the lots valuable improvements were made by the purchaser. The suit was brought by the purchasers for the purpose of charging the amounts so expended upon the land. In granting the relief asked, the court, quoting from Valle v. Fleming, supra, said: “Nothing could be more unjust, we may repeat, than to permit a person to sell a tract of land and take the purchase money and then because the sale happens to be informal and void, to allow him, or, which is the same thing, his heir, to recover back the land and keep the money.”.
For the reasons given I think that the judgment of the circuit court, which seems to have been founded upon the case last cited, should be reversed, and the cause remanded with directions to proceed to the entry of judgment in accordance with this opinion.
PER CURIAM IN BANC. — This cause coming into Banc and being reheard there the opinion of Brown, Commissioner,.is adopted as that of the court; the directions to the lower court being modified as indicated in the concurring opinion of
Concurrence Opinion
CONCURRING OPINION.
I concur in the opinion of our learned Commissioner, Brown, not only for reasons so ably stated by him, but also for the following reasons :
If the English language has any meaning and if the law of Missouri has any application to wills and trusts created thereby, then the will of John Berry, deceased, created a trust in the lands described in the pleading in this case, in favor of his wife and children, to the effect that they should be supported, and the children educated out of the rents and profits thereof. This has not and cannot be seriously questioned.
Unfortunately, the testator died leaving an incumbrance upon the land and failed to appoint a trustee to administer the trust.
Under those conditions Thomas Berry, one of the plaintiffs, undertook to administer upon the estate of his father, and having no means with which to discharge the mortgage mentioned in the evidence, renewed the same for five years, and before it matured, made final settlement of his • father’s estate, leaving the mortgage unsatisfied.
Presently the mortgage became due, and payment was demanded, and there being no funds on hand with which to pay it, and the property being subject to sale in satisfaction thereof, and the trust thereby being placed in extreme jeopardy, the circuit court of the county in which the land was situated and the parties interested resided, under its ancient chancery powers, appointed the defendant Stigall, trustee, to administer the trust created under and by virtue of the will.
Among other things it became his duty to preserve the trust fund, the land in question, in the same manner as if it was his own, in order to carry into effect the trust created by the will; and the only possible way that could be done was to satisfy the mortgage, and prevent the threatened sale; and there being no money on hand with which he could pay off and satisfy the mortgage, it clearly became his duty to borrow money for that purpose, which he did, and satisfied the same therewith.
Had he done neither, he would not have exercised ordinary care, which the law required of him, in the preservation of the trust fund placed in his hands; in which event the land would have been sold and the trust fund would thereby have been sacrificed to all, including plaintiff, which of course, would have rendered the trustee personally liable for a breach of. trust.
The only complaint, in effect, counsel for plaintiffs makes, is, that the trustee, Stigall, did not procure an order of the court which had ample power to make it, authorizing him to borrow the money with which to lift the mortgage, and to execute another to secure the money so borrowed for that purpose.
Strictly speaking, that may have been true (but I am not here prepared to so state, for I have not investigated that question in regard to this class of instruments). Since, however, there is no claim made but what the trustee acted in the best of good faith, and that the money borrowed by him and secured by his deed of trust on the land went in payment of the original mortgage placed upon the land by the testator, no possible damage or harm was done to the plaintiffs; but upon the contrary, they were greatly benefited thereby, in that the trust fund was saved from destruction, worth about $6000, by the discharge of the mortgage which was for a sum about one-fifth the real value of the land.
For the reason stated, if there ever was a cause where the law of subrogation should apply, with all of its vigor, force and natural justice, this is that case, and a court of chancery and good conscience should,
Entertaining these views of the case, I am clearly of the opinion that the judgment is erroneous; and that the appellants, as representatives of the King estate, . are entitled to be subrogated to all the rights and equities in and .to the land in question, that the former mortgagees had therein, prior to the payment of their mortgage by Stigall, trustee.
The judgment should therefore be reversed and cause remanded with directions to the circuit court to enter judgment for appellants according to the views herein expressed, and that the court foreclose the King mortgage in the manner provided for by law in such cases.
Concurrence Opinion
CONCURRING OPINION.
-I cannot vote to affirm the judgment .of the circuit court in this case, because, to my mind, it presents a shocking example of injustice.
■Concretely stated the judgment and facts upon which it is based are as follows: King loaned his money in good faith to save the home of some needy neighbors, to-wit, several fatherless children. The money thus loaned saved the Berry home until her children (the plaintiffs) were grown and able to protect it. Then, after King himself was stricken down by the Grim Reaper, the plaintiffs whom he befriended while living have caused his administrators to be summoned to a place where even-handed justice is supposed to be administered, and there the loan declared void and King’s estate mulcted with a bill of costs.
I have great respect for the learning of the fathers and their efforts to administer equity according to uniform rules. Uniformity is a thing much to be desired in the administration of both law and equity, but the arm of a court of equity should be long enough to right every wrong which it is called upon to redress, and for which the law affords no remedy.
The judgment nisi is so clearly for the wrong party that I would vote to reverse it though it were supported by eVery case adjudicated since the days of Justinian. If this deed of trust was brought forward as a link in a chain of title in an action at law it would, of course, be rejected, but the plaintiffs have called into •action the extraordinary powers of a court of equity and should have meted out to them what a court of conscience finds they are entitled to — no more, and no less.
I approve the opinion of our learned Commissioner, except that it should be modified so as to specifically direct the trial court to enter judgment in favor of the defendants for the amount of the debt
Dissenting Opinion
DISSENTING OPINION.
Being unable to concur in the able opinion of the learned Commissioner in this case and deeming the questions involved to be of too much importance to justify a silent disapproval, I will state the facts and reasons which convince me that the judgment in this case should be affirmed.
John Berry owned 117 acres of land in DeKalb county, Missouri. He executed a deed of trust upon it on June 1, 1888, to secure a note to one William Q. Mintern for $1100, due in five years. He died in January, 1897, leaving a wife and eight children, after having made a will wherein he constituted his wife and eldest son joint executors thereof. By the first clause of his will he devised to his wife all his personal estate with power to sell same for the payment of all his debts. The second clause of his will is, to-wit: “To my said wife I devise and bequeath full powe-r and control of all real estate with which I may die seized until our youngest child shall become of legal age, and from the issues, rents and profits of said land to support and maintain and educate our minor children.” By the third clause of his will he gave all the remainder of his estate, real and personal, sTiare and share alike, to his eight children and his wife. The note given by the testator in his lifetime, secured by deed of trust, matured in June, 1893, at which time his surviving executor made a payment of $200 on the principal of the debt and procured an extension of the remainder so that it should mature five years thereafter, to-wit, June, 1898. Between these dates the said executor paid $140 further on the principal of said ■note and all the interest accruing thereon until six months before its final maturity. On February 9,1898, W- M. Stigall, the guardian and curator of four of the
The present action was subsequently brought by the children of John Berry, one of them being a minor and suing by his guardian, for the purposes of annulling and declaring void the last mortgage or deed of trust executed upon the land of their father to Thomas L. King by W. M. Stigall, as before recited. Since thé filing of this suit Thomas L. King has died and it is now revived against W. M. Stigall and "W. A. "Wilson, his administrators. To this action the administrators answered, settingup three defenses: (1) That said W. M. Stigall as trustee under the terms of his appointment by the circuit court, before quoted, “had the right and power, the premises conceded, to execute the aforesaid note and deed' of trust to said King.” (2) That should the court find that said note and deed of trust so executed to said King are void and of no effect, then the court will declare that the defendants as administrators of the said King have a lien on the land described in said deed of trust for the amount of $789.20. (3) That, if the court should find that defendants have no lien on said land, then the court will adjudge and decree that they be “subrogated” to the rights of said William Q. Mintern, to whom a note and deed of trust had been executed by the testator, father of the plaintiffs, and that such deed of trust be declared in full force and effect for the use and benefit of the defendants.
Upon a hearing in the circuit court there was a decree entered annulling and cancelling the last mortgage or deed of trust given by Stigall as trustee to Thomas L. King. From that decree the defendants have appealed to this court.
We have carefully considered the brief filed by the learned counsel for plaintiffs, and we are unable to find either in its points or argument any effort to sustain the first defense set up in their answer in this case, to-wit, that the deed of trust by Stigan as trustee conveyed the title to the property therein described to Thomas L. King, other than a claim made that in some way he got such power and authority from the decision of the Kansas City Court of Appeals in the case wherein he was sued for an accounting. No question as to the right of power of Stigall to convey the title to the real estate of John W. Berry was involved in that case, nor was any such question alluded to in the decision of that court. [Berry v. Stigall, 125 Mo. App. 264.] The sole issue in that suit was whether or not Stigall as trustee of the rents and proceeds of the plaintiffs had made proper disbursement of the moneys so received by him and might use a portion thereof to pay a note which he had given to borrow money for repairing the estate. The Kansas City Court ruled that the terms of the will created a trust in the incomes of the estate in the wife of the testator during the minority of the children to which Stigall succeeded under appointment of the circuit court and authorized him to use the rents collected by him for the repair of the property and the prevention of its decay and dilapidation. In this the Kansas City Court of Appeals was supported by the language of the clause of the will and the objects of the managerial trust created therein and also by the terms of the order of the circuit court appointing Stigall as trustee after the death of the widow. There is not the remotest hint in the decision in that case that Stigall as such trustee had any power to convey or alien the title to the real estate of John W. Berry, in any mode or for any pur
The proposition that a man without any title to real estate can make no valid disposition of it against the owners is one so transparently self-evident that it does not seem to have been nakedly presented to the appellate courts. Hence, the only rulings of such tribunals illustrative of it are those made in cases where such grantor had some estate in the land or' some power to convey it, and sought to exercise a broader right than that given. A case of this sort is Price v. Courtney, 87 Mo. 387. There, the devise to the trustee was of all the property, real and personal, of the testator in trust for his children with power in the trustee (Courtney) to sell the lands and to have all power, management and control which the testator would have had if alive. Assuming that this power gave him a right to incumber the land, the trustee executed a mortgage on a part of it and claimed to have used some of the money for the payment of taxes on other parts of the land. The heir brought a suit to annul the trust deed. After a thorough analysis of the law, this court held that the mortgage made by the trustee was void. [Ibid., p. 395.] That ruling has been affirmed in the recent case of Dougherty v. Dougherty, 204 Mo. l. c. 234, and in many intervening decisions. It is conclusive of the invalidity of the trust deed in the case "at
It is only just to the learned counsel for appellants to state that they did not attempt by argument in their brief to sustain the first defense contained in their answer, averring the validity of the trust deed in any other way than upon the assumption (shown to be erroneous) that the decision of the Kansas City Court of Appeals empowered the trustee to execute it. The first defense in the answer cannot be sustained.
II.
As the deed of trust executed by the trustee Stigall was a simple nullity so far as the title of the plaintiffs is concerned to the land described in said instrument, the only question left is the sufficiency of the second and third defenses set up in appellants’ answer and quoted in the statement, to the effect that the administrators of Thomas L. King, the lender of the money to Stigall, are entitled as against the plaintiffs, the devisees of the land, to have it charged with a lien by subrogation or some other equity. First, as to subrogation. This doctrine having its root in the Roman law is adopted in equity jurisprudence and applied according to prescribed rules in this State and elsewhere. The parties entitled thereto are roughly divided by Mr. Pomeroy into three classes: (1) “Those who act in performance of a legal duty” arising by agreement or law. (2) “Those who act” for self-protection. (3) “Those who act at the request of the debtor, directly or indirectly, or upon invitation of
The law on the subject of subrogation is clearly and definitely fixed and the parties entitled thereto defined in the decisions of this State. [Capen v. Garrison, 193 Mo. 335; Kleimann v. Gieselmann, 114 Mo. 437; Kleimann v. Gieselmann, 45 Mo. App. 497; Valle v. Fleming, 29 Mo. 152, l. c. 166; Wooldridge v. Scott, 69 Mo. 669; Bunn v. Lindsay, 95 Mo. 250; Norton v. Highleyman, 88 Mo. 621; Price v. Courtney, 87 Mo. 387; Evans v. Halleck, 83 Mo. 376; Bissett v. Grantham, 67 Mo. App. 23; Lemmon v. Lincoln, 68 Mo. App. 76.]
In the case of Valle v. Fleming, supra, the administrator, proceeding under the statute to sell the- land for the payment of debts, failed to give the proper notice. The purchaser at the sale bought in good faith. His money was used by the administrator to pay off
The next case, Wooldridge v. Scott, 69 Mo. 669, a creditor of an estate satisfied a demand filed against it and gave his note for the balance of an amount necessary to discharge a vendor’s lien for purchase money against the.land of the intestate upon the understanding that he should be subrogated to the vendor’s lien. 'The creditor subsequently brought a suit in equity to Sbe subrogated. The court held, “We are clear that plaintiff was not entitled to have a lien as vendor of the land, declared in his favor, either through subrogation or otherwise.”
The next case is Price v. Courtney, 87 Mo. 387. In that case, as has been seen, the trustee, though endowed with ample power to sell the land and invested with title thereto by the terms of the will, had no power to mortgage it. He did so, however, and the mortgagee set up a right to subrogation on the theory that his money had been used by the trustee for the payment of taxes on some of the lands in his hands. The court held that the proof did not show this was the purpose of the mortgage, but added the following language: “But even had it been loaned for that specific purpose and applied in accordance therewith, such loaning and such application would have created no equity of subrogation or otherwise, in favor of him who loaned the money to remove the lien. This point was expressly so decided in Wooldridge v. Scott, 69 Mo. 669. It is true that was a case where the money was loaned in order to remove a vendor’s lien, but this cannot alter the principle, which must underlie all similar transactions.” [Price v. Courtney, 87 Mo. l. c. 395.] The case of Price v. Courtney is identical with the one at bar so far as the action of the trustee in making the mortgage is concerned. In that case, as in the one at bar, there was no court proceeding but the trustee acted
The next case is Norton v. Highleyman, 88 Mo. 621. The facts were that Highleyman owned a tract of land subject to a mortgage in favor of Pettis county. Default being made, the county directed the foreclosure of the mortgage. On the day of sale, Highleyman informed the sheriff he was willing to pay all the land was worth and more than the debt. Plaintiff, whose land joined that about to he sold, appeared at the-sale to buy the same but was told that the sale would he postponed. He thereupon left, and the land was sold to Highleyman, who did not, however, pay his bid. Seven days afterwards the plaintiff appeared, and the county court being in session and being informed of the facts, ordered him to pay the sheriff the amount hid by Highleyman; and plaintiff “believing: that by so .doing he would succeed to the right of Highleyman under said hid and get a deed, paid the money and the mortgage was entered satisfied.” Plaintiff subsequently brought suit, asking to he substituted to the rights of the county and that the mortgage of the county be enforced in his favor. Demurrer to his petition was sustained. The case was appealed. The Supreme Court held that the parties had made a mistake in a matter of law, and the plaintiff was not entitled to any relief, citing and approving Price v. Courtney, supra, and adding: “Before a third party, making payment of a debt secured by mortgage, can he subrogated to the rights of the mortgagee, he must show either that he made the payment at the request of the mortgagor, or to protect some interest he had of his own at the time of the payment.” [Norton v. Highleyman, 88 Mo. l. c. 624.]
The next case is Kleimann v. Gieselmann. That case originated in the St. Louis Court of Appeals and was sent to this court, and decided by Division Two. The point in judgment was the, right of one who advanced money to a debtor to pay off a deed of trust on his land, to be subrogated thereto. Mrs. Werk loaned $1600 to Mrs. Geiselmann to pay a debt owed by her deceased husband, which was secured by deed of trust on the property in controversy. The money was applied to the extinguishment of the prior incumbrance. The property was subject to homestead rights in the children and passed by devise. The court held that the transaction resulted from a.mutual mistake of law on the part of the two women, the lender thinking the widow had a right under the will to convey the property, and the widow sharing the same view; and added, ‘ ‘ Granting that there was a mutual mistake between Mrs. Werk and Mrs. Gieselmann as to the interest acquired by the latter to the property under the will of her deceased husband and right to convey the same, as she intended to do, it was merely a mistake of law against which a court of equity will not grant relief.” [Kleimann v. Gieselmann, 114 Mo. l. c. 444,
The next case is Capen v. Garrison, 193 Mo. 335. In that case the curator of certain minors executed a mortgage upon their property after petitioning the probate court for authority so to do for the purpose of paying off an existing incumbrance. The court made the order as requested, and the money secured by the curator was applied to the payment of the pre-existing incumbrance (which was released and cancelled of record) and to the accumulated taxes. The new deed of trust to the lender was duly recorded. The prayer of the petition of th¿ mortgagee was that his deed of trust be held to be a valid lien; that if that could not be done, then that the entry of satisfaction of the old deed of trust be set aside and he be subrogated to the rights of the creditor secured thereby; and if that could not be done, that he be entitled to have an equitable .lien on the property and a foreclosure thereof. The court in a careful opinion and after reviewing the law of this State and many of the cases cited above, was. forced to the conclusion that the lender of the money was not entitled to redress in either mode, and that the deed of trust executed to him by the curator was void; that the case in question was clearly distinguishable from the one of Valle v. Fleming, supra, in that the curator had no power to mortgage his ward’s land in order to borrow money to discharge a pre-existing in
. It is also cited and approved by the same judge in the ease of In re Lee, 182 Fed. l. c. 587 and 588.
It is impossible under the facts contained' in this record and as shown by the testimony of Stigall (who was the only witness for the defendants) to afford the personal representatives of King any relief by subrogation or equitable lien against the land described in the last mortgage to him. Stigall, when permitted to testify over the objection of plaintiffs on the ground that King, the other party to the contract, was dead, stated in reference to securing the money: “Q. At whose request? A. At my request.” There is no pretense in the brief of counsel nor an atom of evidence tending to show that King made this payment at the request of any other person than Stigall. He could not have made it at the request of Berry, for Berry had died before Stigall became trustee of the lands. He could not have made it at the request of the widow, for she had died before Stigall was appointed trustee. There is not a scintilla of testimony that he ever applied to any of the minors, who had become of age, for authority to borrow this money, nor would it have availed him if he had, because, as shown in the case of Capen v. Garrison, supra, and as is the law, the original deed of trust given by their father was not a debt against any of his children. Stigall did not even try to get the authority of the court to authorize Ms action in mortgaging the real estate of the plaintiffs. There was not a circumstance in the case wMch does not conclusively show that the transaction resulted solely from a simple mistake of law on the part of Stigall into which he and the mortgagee fell, in that they believed he.had power to execute the mortgage in question. As demonstrative of that, the lender demanded that the original mortgage be can-
There is no possible legal viewpoint whereby this transaction growing ont of a mistake of law on the part of Stigall and King can create any right of subrogation or equity as against the heirs, who are the plaintiffs in this action. As has been shown, the law governing the case at bar has been settled by at least ten cases in the appellate courts in this State and is in perfect accord with the great weight of authority by the text-writers, above quoted, and in the decisions of other tribunals. The learned Commissioner seemed to think that some authority for a contrary notion is afforded by the case of Donohue v. Daniel, 58 Md. l. c. 600. That case simply held that a curator who had removed some incumbrances existing against his wards and their property, would have a just and legitimate claim against them and would be entitled to the benefit of a lien which he raised (“more especially when he did so by an order of the Orphan’s Court”). This latter feature is not noticed in the quotation from that case by the learned Commissioner. The case is therefore wholly distinguishable from the one at bar even if it were well reasoned or supported by authority, which is not conceded.
Nor is there any support for his view in the case of Cutter v. Burroughs, 100 Maine, l. c. 392. The doctrine there announced is simply that the law will not permit a person to sell a tract of land and take the purchase money and then because the sale is informal and void, allow him or his heirs to recover back the land and keep the money. At a mere glance it will be perceived that in the case at bar there was not a ;sale of the land by its owners — the children of John Berry — but a sale by a stranger to the title to a third party without the authority, consent or knowledge of the plaintiffs, upon his own initiative and occasioned
Neither is there any relevancy in the authority alluded to by the learned Commissioner in Coleman v. Frazer, 66 Ky. l. c. 309, 310. The court simply announced in that case that inasmuch as lunatics, like infants and married women, are chargeable as for necessaries, therefore a person of unsound mind to whose attorney money had been loaned to relieve his estate of an incumbrance, might recover the money upon an implied promise or by subrogation. The only ground of the decision is, as said, the liability of such-persons for necessaries, to support which Parsons on Contracts is cited.
Under the statutes of this State no curator or minor can borrow money and pledge his land therefor except for education and maintenance. He is shorn of every other faculty of charging the real estate of his ward. [R. S. 1909, sec. 430; Capen v. Garrison, supra.]
The conclusion is, that the judgment of the trial court is correct and should be affirmed. The foregoing opinion is refiled as my dissent and that of Graves and Faris, JJ., to the opinion adopted in Banc in this case.