25 Ind. 450 | Ind. | 1865
The appellees filed their complaint against the appellants, and also against the heirs of Sidney Hadley, deceased, alleging that Pickett, as the guardian of William P. Cannon, in pursuance of an order of the Court of Common Pleas of Parke county, sold to Sidney Hadley, on the 10th -day of November, 1856, the interest of his ward in the land •described in the complaint, being an undivided one-fourth ¡thereof, for the sum of $675. One-third of the purchase ¡money was then paid and the notes of the purchaser taken €or the residue, payable in nine and eighteen months, with
It is insisted by the appellants that the surrender by Pickett of the original notes, and the taking of new notes, secured by a mortgage upon a portion of the land sold, was, upon its face, a waiver of the vendor’s lien. It was held in the case of Capper v. Spottiswoode, Tamlyn’s Rep., (Rolls.,) 21, that “where a bond was given for the unpaid purchase money, and a mortgage on part of the purchased estate, the intention that the lien should not extend over the rest of the estate is sufficiently clear.”
But it is insisted that as Pickett was acting as the agent of three of the appellees, and as guardian of the others, he had no power to release the vendor’s lien. But in this action the persons for whom he acted as agent are in court enforcing the very instrument, the acceptance of which by Pickett waived their lien as vendors, and they cannot be heard in the same action to affirm and avail themselves of his contract, and also to deny his authority to make it. They have not repudiated his act and abandoned the mortgage security, but have availed themselves of it, and in this action ask its foreclosure.
The statute provides that in case of sale of the real estate of the ward by the guardian, the court shall provide in the order “the credits to be given for the purchase money, and the mode of securing the same.” 2 G-. & H. § 19, p. 572. What order the court made in this ease we are not advised.
Whether the guardian may waive the vendor’s lien, rendering himself liable upon' his bond thereby for any loss resulting, we are not called upon to determine. Tie has attempted to make a contract as guardian which would, on its face, waive his lien as vendor, and he now appears in court asking to enforce that contract, and that the mortgage taken by him as guardian be foreclosed, and that, in the same deei-ee which recognizes the contract as valid and orders its enforcement, the court will also treat it as invalid
The judgment and proceedings against the appellants are reversed, with costs, back to the filing of the demurrers to the complaint, and the cause is remanded for further proceedings in accordance with this opinion.