
    (First Circuit—Hamilton Co., O., Circuit Court
    Jan. Term, 1899.)
    Before Smith and Swing, JJ.
    M. T. HUTCHINSON v. CATHERINE A. McCARRON et al.
    
      Conveyance to guardian individually of land bought with wards’ money —Innocent holder of mortgage and notes for balance of purchase money superior to equitable lien of wards—
    
    Property was purchased by a guardian by oráer of court with the-money of his wards, but the deed was executed in the name of the guardian individually, who gave his individual notes and mortgage for the balance of the purchase money, the understanding being that the guardian would afterwards convey to the wards, of all of which the vendor had full knowledge. The-deed actually so made by the guardian to the wards, however, was never delivered to them, and afterwards the guardian conveyed the land to his wife who made an assignment for the benefit of her creditors, and the assignee commenced proceedings to-sell the land. The vendor of the land had before that assigned the mortgage aud notes to different innocent parties. Held, as. between such innocent assignees of the mortgage and notes, and the wards, that the lien of such assignees of the mortgage and, notes was superior to the equitable lien of the wards.
    Error to the Court of Common Pleas of Warren county.
   Smith, J.

We are of the opinion that the judgment of the court of common pleas was right, and should be affirmed.

The controversy arose over the distribution of the proceeds of a tract of land sold by Hutchinson, assignee of Mrs. MeCarron, to pay the liens thereon. It appears from the finding of facts that this real estate had been sold and conveyed by Levi Mills, as assignee for the benefit of creditors of Mrs. Hyatt, to James T. MeCarron for $5,500. Mr. MeCarron paid $1,500 in cash and gave notes for the residue secured by a mortgage on the real estate, which was duly recorded. . Afterwards he paid $500 on one of the notes, and subsequently to this payment, Mills transferred the notes, indorsing them without recourse to different per. sons, they paying full value therefor and taking them without any knowledge of an equity in the land or those notes of any other person than the mortgagee.

Before McCarron contracted to buy the land from Mills, he had been appointed as the legal guardian of Ruth, Henrietta and Frank McCarron by the probate court of Brown county, Ohio, and had been by that court authorized and empowered to use $2,000 of his wards' money in the purchase of real estate, the title to which was to be taken to said James T. McCarron as guardian, and Mills had been advised of those facts. McCarron wanted to buy this land as guardian, but Mills would not make such an arrangement, but told him he could buy it in his own name- — make the cash payment and execute the notes and mortgage for the deferred payments, and then convey the property to the children. This course was pursued, and McCarron executed the notes and mortgage and paid $2,000 of his wards’ money to Mills on .account of the purchase money, and Mills knew that the money was in McCarron’s hands as guardian of said minors. He, (McCarron) and his wife, subsequently executed a deed for the land to the children, but it was not delivered to them;. Afterwards McCarron conveyed the land to his wife, and she made an assignment of her property to Hutchinson for the benefit of her creditors. Hutchinson commenced proceedings for the sale of the real estate to pay the liens thereon, and the mortgagee and his assign*ees and the minors were made parties and set up their respective liens — the claim of the minors being that they had an equitable claim to the land by virtue of the facts stated, and that Mills knew this when he took his mortgage, and therefore it was superior to his claim on the mortgage, and to that of his assignees. It also appeared that when Mills assigned the notes to the purchasers, he did not at the same time or until some time afterwards indorse and transfer the mortgage itself to his assignees.

As against McCarron himself,unquestionably the minors, by virtue of the facts stated, had an equitable lien on the land which the court would enforce for the purchase money they paid on the land, and the same would be the case, we suppose, as to those persons who afterwards had acquired title to or on interest in the land from McCarron, with knowledge of the facts. But would they be entitled to such relief as against Mills or those to whom he assigned the notes and mortgage? We think not. Suppose the land had been conveyed to McCarron as guard-ian of these minors, and he had used |2,000 of their money in.making the cash payment and given his notes and mortgage for the deferred payments. Would not the mortgage lien be the first and best one on the property? The interest of the minors then would be subject to the mortgage lien for the purchase money — and we-think the same rule should apply here and any equitable lien of the minors be postponed to the legal lien of the mortgagee. The execution of the deed and the mortgage is one transaction. McCarron took the land subject to the legal lien of the mortgage, and the equitable lien of the minors was subject thereto,even as against Mills, and therefore as to his assignees to whom he transferred the notes, thereby transferring an interest in the mortgage. But a transfer of the mortgage itself was afterwards made.

Burr & Brandon, Attorneys for McCarron heirs.

F. M. Glevinger, Attorney for the Assignees of mort-* gage claims.

Judgment below affirmed.  