Bide in Equity, to compel the defendant to discharge a mortgage of personal property, given by Austin N. Kingsley to Charles C. Kingsley in April, 1904. Brigham is the guardian of Austin, and the defendant of Charles. Transferred from the October term, 1905, of the superior court by Peaslee, J., upon the defendant’s exception to a decree ordering him to discharge the mortgage. At the time the mortgage was executed neither of the parties thereto was under guardianship.
Cited by 1 later decisions — most recently November 2011
¶1
If Austin was indebted to Charles when the mortgage was made, the court has found the mortgage was not made to secure Charles against loss on that account. Consequently the latter’s guardian cannot hold the property for that 'purpose; for when the mortgagee has a claim against the mortgagor that is not included in the mortgage indebtedness, he cannot apply the mortgaged property in satisfaction of it without the mortgagor’s consent.
¶2
Notwithstanding Austin is estopped to deny the validity of this mortgage, his creditors are not, and Austin’s guardian represents them in so far as the property is needed to pay his debts
(Cook
v. Lee, 72 N. H. 569, 571); and since the property is needed for that purpose, the order must be,
