Burns v. Cooper

Citations

• 140 F. 273
• 72 C.C.A. 25
• 1905 U.S. App. LEXIS 3932

Syllabus

<p>1. Guardian — Sale oe Ward’s Land — Setting Aside Purchase by Guardian.</p> <p>A sale made by a guardian of the real estate of his'wards, in pursuance of lawful authority and in conformity with an order made by the proper probate court having exclusive jurisdiction of the persons of the wards and their estate, is voidable under the laws of the state of Nebraska and the general principles of equity as well, and may be set aside by the wards or any one lawfully claiming under them, if the guardian procures the property to be sold for the purpose of transferring the title thereof to himself, and in the execution of such purpose indirectly becomes the purchaser at his sale.</p> <p>[Ed. Note. — For cases in point, see vol. 25, Cent. Dig. Guardian and Ward, g 370.]</p> <p>2. Same — Estoppel op Ward.</p> <p>In such case of actual fraud, the fact that the wards may have received some benefit from the transaction will not estop them or one lawfully claiming under them from avoiding the sale, or from interposing the fraudulent character of the sale in defense of the rights of such wards, or any one claiming under them, in the property.</p> <p>3. Mortgage — Foreclosure—-Defenses—Laches.</p> <p>One who holds the legal title to real property is not guilty of laches which will prevent him from asserting the invalidity of a mortgage thereon, in defense of a suit to foreclose the same, merely because he has not instituted a suit to avoid the mortgage. It is time enough for him to present his objection to the mortgage when it is attempted to be asserted against his legal title.</p> <p>4. Same — Bona Fide Purchaser — Notice.</p> <p>The holder of a promissory note secured by mortgage on the real estate of the wards so sold and purchased by the guardian, executed by the guardian after his purchase, is chargeable with notice of what is shown by the public records affecting the title and security afforded by his mortgage; and this, notwithstanding such owner is a bona fide holder for