Curtis v. Ballagh , 4 Edw. Ch. 635 ( 1845 )

The Vice-Chancellor :

It is not probable that the petitioners can ever derive any benefit from the property covered by the mortgage in question, even though it should be found not to affect their title or interest as remainder-men under the will of their father : it appearing from the affidavits and papers read in opposition that the debts of the father and the support the children have had since his death have more than absorbed the whole estate. Still, that is not properly the question at this time. The point is, whether this mortgage can be used to extinguish their title as devisees ?

The executors had no right to mortgage the real estate, unless by some power or authority conferred on them by the will. There is a power to convert into money portions of the real estate, in order to make up a deficiency of the income for the support of the wife and children. So, there is a power to dispose of the real estate for the purpose of investing the proceeds in other securities for their benefit. But it is very questionable, whether the giving of this mortgage can be considered as within either of those powers 1 and, under the circumstances, these petitioners ought to have the opportunity of being heard on that point.

Although the guardian ad litem might and ought to have raised the point, had he been aware of the facts, yet, he has not done so. It is not, however, too late for these parties to be let in to make a defence, by an opening of the enrolment and setting aside the decree : Millspaugh v. McBride, 7 Paige’s C. R. 509 ; Tripp v. Vincent, 8 Ib. 176.

This course seems to be the more necessary and proper in order to insure a good title to a purchaser against these children and devisees. Under the present decree and the master’s sale which has been made, the purchaser objects to the title: having had notice that these petitioners meant to contest the validity of the mortgage ; and until there is a decision on the merits in relation to the mortgage, 1 consider that the court would not compel the purchaser to take.

Ordered, that the enrolment be opened and the decree vacated; and that the petitioners have leave to answer de novo, setting up the defence of the invalidity of the mortgage as against them and that the master refund the purchase money paid by the purchaser. Costs to abide the event.