United States Mortgage Co. v. Sperry

Citations

• 138 U.S. 313
• 11 S. Ct. 321
• 34 L. Ed. 969
• 1891 U.S. LEXIS 2087

Syllabus

<p>The power of a guardian, under the statute of Illinois relating to guardians and wards, approved April 10, 1872,- (Rev. Stats. Illinois, 1874, c. 64), to mortgage the real estate of the ward is subject to these express restrictions : (1) that he obtain the leave of the county court, based upon petition setting out the condition of the estate, the facts and circumstances on which the petition is founded, and a description of the premises to be mortgaged ; (2) that the mortgage, if not in fee, must be for a term of years not extending beyond the minority of the ward; and (3) that the time of the maturity of the indebtedness secured by it should not extend beyond the minority of the ward. It is, also, subject to the implied restriction, controlling the discretion and power both of the guardian and the county court, that the indebtedness secured by the mortgage must arise out of, and have some, necessary or appropriate connection with, the management of the ward’s estate.</p> <p>Mortgages executed in 1872, 1873 and 1876, by a guardian in Illinois, with the leave of the county court, to secure the payment of bonds given by him for moneys borrowed to pay off existing encumbrances upon the ward’s real property and to improve such property by replacing thereon buildings that had been destroyed by fire, are sustained as not invalid under the above statute.</p> <p>Such mortgages were not invalid because authorizing an absolute sale, and not expressly recognizing the right /of redemption after sale; for such right of redemption exists, by statute, as a rule of property, whether recognized or not in the mortgage.</p> <p>The United States Mortgage Company, a corporation of New York, being authorized by its charter to lend money .on bond and mortgage on real estate situated within the United States, or upon any hypothecation of such real estate, or upon hypothecation of bonds or mortgages on such real estate, for any period of credit, could contract in Illinois to lend money t