The record-union., 1891-03-18
Filled March Is, 1871
DEPARTMENT TWO,

DEPARTMENT TWO.
PEERS EFT AL, Respondent,
MCLAUGHLIN EFT AL, '0'
Appellants.
The court below adjudged that defend
ant, Thomas Mclaughlin, is indebted to
the plaintiffs in the sum of Sl,615 "A, and
that said Indebtedness is a lien upon the
land described in the complaint, and
directed that it be sold to satisfy said lien.
All of the defendants appeal from this
judgment. There is no bill of exceptions
in the record. The findings show the
following facts:
The defendants, John Thomas Edward
Mclaughlin and Margaret Mclaughlin,
are minor children of the defendant,
Thomas Mclaughlin. In March, 1884,
the plaintiffs and the defendant, Thomas
Mclaughlin, made an agreement, the
plaintiffs to convey to said Thomas Nc
Laughlin and his said minor children the
land described in the complaint for the
sum of $500, and Mt the same time the
defendant, Thomas Mclaughlin, paid to
plaintiffs on account OF said purchase, the
sum of 81 300, and the balance of 81 200
was to be paid October l, 1854. On Octo-
Der 10th following, this balance was still
unpaid, and it was then agreed between
plaintiffs and the defendant, Thomas Nc
Laughlin, "for himself and his said chill
dren, $. that plaintiffs should
execute deed of said land
to Thomas Mclaughlin and his said chill
dren, and that the said balance of said
purchase price q . should
be secured by a mortgage upon said lot
of land"
Thereupon plaintiffs conveyed said
land to the defendant Mclaughlin and
his said minor children, at the same time
receiving back a note for $1,000, and a
mortgage to secure it upon the land con-
yeyed. The mortgage recited that
Thomas Mclaughlin, John Thomas
Edward Mclaughlin and Margaret Me
Laughlin' are parties thereto of the first
part, and was signed:
THOMAS MCLAUGHLIN (seaD,
''THoMAs MCLAUGHLIN (seal),
Guardian of the persons and estates of
John Thomas Edward Mclaughlin and
Margaret Mclaughlin, minors"
The note was also signed by Thomas
Mclaughlin for himself, and also below
as guardian for the said minors.
The court further finds that said deed
and mortgage were drawn by one Oliver
Walcott, an attorney at law, who repre-
sented to said plaintiffs that said mortgage
was sufficient to createa lien for said sum
of $1,000, upon the interests of said
children as well as upon the interest of
said Thomas Mclaughlin in said lot of
land, and that said plaintiffs when they
executed said deed and received the
mortgage believed that said mortgage
was sufficient and effective.'' for that
purpose.
1t is claimed by the defendant minors
that the judgment is erroneous in so far
as it makes the said Indebtedness of the de-
fendant, Thomas Mclaughlin, lien
upon their interest in the land so con-
veyed to them.
There is nothing in the case showing
that any portion of the money paid by the
defendant, Thomas Mclaughlin, belonged
to said minors, or whether he was or was
not i'll fact the guardian of their estates.
We are of the opinion that upon the
facts appearing here the mortgage re-
ferred to may be enforced as an equitable
mortgage upon the whole land, and what
ever interest the defendant minors may
have acquired therein by virture of the
deed referred to is subject to its lien.
The principle is well settled in equity
that a mortgage effectively executed, or
an imperfect attempt to create a mortgage
upon specific property for the purpose of
securing a debt, will create a specific lien
upon the property so intended to be
mortgaged. Daggett VS.. Rankin, 81 Cal.
327; Leve VS.. s. n. l.. w. and M. Co., 81
Cal. 652.)
In Remington VS.. Higgins (54 Cal. 620),
which was an action against husband and
wife, the facts We're, that the husband
bargained for land, agreeing that mort
gage should be given to secure the pur-
chase price, and at his request the deed
was made to his wife, and she executed
the mortgage. This mortgage was, how
ever, invalid, because, by the conveyance
to the wife the property became commun-
ity property, and as such was not subject
to mortgage by the wife. In dealing with
that state of facts the court uses this
Al
ton did not create mortgage in law, and
not deciding but that plaintiff may have
waived his lien of a vendor, we are of the
opinion that plaintiff has lien upon the
premises by way of equitable mortgage
to recover the unpaid portion of the pur-
chase money and int rest. The husband
in bargaining for the premises agreed that
mortgage should be given; paper was
executed in pursuance of that agreement
which was supposed by the parties to
have accomplished that object 1t now
appears that that paper is invalid as a
mortgage; equity will treat that as done
which the parties agreed to have done,
and which ought to have been done"
So in this case, the father agreed that
the balance of the purchase price
should be secured by mortgage of the
land conveyed, and we presume that the
one under consideration was executed by
him in good faith to carry out that agree
ment, and the court below finds that the
plaintiffs accepted it under the belief that
it was valid lien upon the whole land
they were conveying, and it was because
the plaintiffs so relied upon it that the
defendants were enabled to acquire any
interest in the land. We have not over
looked the fact that in all the cases above
cited the persons against whom the i'm
perfect instrument was enforced had the
capacity to make a valid contract, while
by the Judgment here it is the land of
minors who were and are incapable of
contracting for land, and, in a general
sense, of ratifying such contract, against
which this mortgage is enforced.
But this fact ought not under the cir
cumStanceS here disclosed to prevent the
application of the equitable rule which
lays at the foundation of these cases. 1t
must be borne in mind, also, that the
agreement of the father and his assumed
agency in accepting deed in pursuance
OF the agreement is the source or founda-
ton of all the right, legal or equitable,
which these minors have in the land.
The deed was made to them, solely by
direction of the father. That was the
form which the transaction took, and in
equity the agreement that the purchase
price should be secured by mortgage
upon the land, the conveyance and the
mortgage must be regarded as one trans
action, and no person, whether minor OF
adult, can be permitted to adopt that part
of an entire transaction, which is bene-
ficial, and reject its burdens.
This commanding principle of justice is
so well established that it has become one
of the maxims of the law The father
acted for the children, and they must
either accept or repudiate the entire con-
tract which he made; they cannot retain
its fruits and at the same time deny its
obligations.
"a party cannot apply to his own use
that part of the transaction which NAV
| bring to him a benefit, and repudiate the
other, which may not be to his interest to
fulfil.