In re Granstrand

49 Minn. 438 | Minn. | 1892

Mitchell, J.

The greater part of counsel’s argument was devoted to the alleged insufficiency of the evidence to support the findings of fact. That question is not presented by any proper assignment of error. According to repeated rulings of this court, the third, fourth, and fifth of assignments are too general to be availing, because not indicating the specific errors asserted. Wilson v. Minnesota Farmers’ Mut. Fire Ins. Ass’n, 36 Minn. 112, (30 N. W. Rep. 401;) Duncan v. Kohler, 37 Minn. 379, (34 N. W. Rep. 594;) Fredericksen v. Singer Mfg. Co., 38 Minn. 356, (37 N. W. Rep. 453;) State v. Hays, 38 Minn. 475, (38 N. W. Rep. 365;) Stevens v. City of Minneapolis, 42 Minn. 136, (43 N. W. Rep. 842;) Smith v. Kipp, ante, p. 120, (51 N. W. Rep. 656.)

The only question open to the appellant under his assignments of error is as to the sufficiency of respondent’s petition, — whether it states facts sufficient to entitle the petitioner to the relief prayed for, to wit, to set aside the order of the probate court authorizing the appellant, as guardian, to lend his ward’s money on mortgage upon the real estate referred to. On this point there can be no doubt. It is alleged, in substance, that when appellant applied for and obtained this authority he himself had a mortgage on the land, and that his purpose and object (afterwards carried into effect) were, not to invest his ward’s money by actual loan, but to unload upon the ward his own mortgage, which was wholly inadequate security. He was so interested in the transaction that it was in law a fraud on the ward, unless his interest was at the time fully disclosed to the probate court, the burden of showing which, as a matter of defense, was upon the appellant. While not involved in the consideration of the sufficiency of the petition, we may remark that the order of the probate court falls very far short of showing that the real nature and extent of appellant’s interest in the transaction were disclosed to that court. It does perhaps show that the court supposed that pending the application for the authority to make the loan, and in anticipation of its being granted, the appellant had, with a view of securing an investment for the money of his ward, taken a mortgage on the property running to himself.

(Opinion published 52 N. W. Rep. 41.)

But making a new or original loan in this way was a very different matter from merely taking a new mortgage in renewal of an old mortgage of his own. Had the probate court been advised of this latter fact, it might well have investigated the matter more carefully, and finally refused to authorize the investment.

Order affirmed.