
    Daniel P. Parker versus Mitchell Lincoln and James S. Trott.
    Where a mortgage is made to an infant having a legal guardian, and the moltgagor or his assignee would redeem, it is proper to join the infant and the guardian in a bill brought for that purpose. The Court will, however, appoint some other suitable person, who has no interest in the business, as guardian to the infant, to defend his interest in the suit.
    This was a bill in'equity, in which. th.e plaintiff sets forth, that, m December, 1808, one Rachel Thaxter, being seized in fee, as tenant in common with the' said J. S. Trott, of one undivided third part of a certain messuage and land in Boston, by her deed of bargain and sale duly executed, conveyed the same to the said Trott, then and still a minor under the age of twenty-one years, for whom the said Lincoln then was and ever since has been guardian, to hold the same to the said Trott, his heirs, and assigns, in fee and in mortgage, for securing the payment of $750 in two years with interest, according to the tenor of a bond of the same date, &c. The plaintiff then alleges a purchase by him of the equity of redemption, remaining in the said Rachel, at a sheriff’s sale, under an execution against her and in favor of one Jones; and that immediately afterwards he gave notice to the defendant, Lincoln, of his said purchase, and that he was ready and willing to pay the amount due on said mortgage, and requested the said Lincoln to inform him what sum was due thereon, that he might pay the same and redeem the said mortgaged premises; but the said Lincoln then and there declined and neglected so to inform him, or to give him any account thereof. The plaintiff then alleges a tender to the said Lincoln of $1000 in satisfaction of said mortgage, with a demand of an * account of any [ * 17 ] payments received on said mortgage, as also of the rents and profits of the estate, over and above the repairs, &c., and that lie offered the drought of a release to be executed by the said Lincoln, and requested him to execute the same. Yet the said Lincoln refused tc exhibit such account, to accept the said money in satisfaction of the said mortgage, and to execute the said release. The plaintiff brings into Court the said sum of $1000, that the same, or such part thereof as the Court shall order, may be paid over to ;te said Lincoln or Trott, or to any person entitled thereto under the said mortgage ; and prays relief in the premises, and that the said Lincoln or the said Trott may be held to account, &c., and that he may recover possession of the premises, and for his costs, &c.
    The defendant, Lincoln, appeared, and in answer to the said bill demurred in law, assigning for causes of demurrer, first, that he is not a mortgagee or vendee, claiming the mortgaged premises by force of the deed of mortgage set forth, or of any deed of mortgage, nor is he a person holding or claiming said premises under such mortgagee or vendee ; — secondly, that it appears by the complainant’s bill, that the said Trott was, at the time of the execution of the said mortgage, and on the day of the teste of the said bill, and still is, a minor, under the age of twenty-one years ; — thirdly, that infants or guardians are not within the provisions of the statute of 1785, c. 22, entitled, “ An Act giving remedies in equity,” or of the act or acts in addition thereto ; nor are such provisions binding on them or either of them.
    There was no appearance on the part of Trott, the other defendant ; whereupon it was moved by the counsel for the plaintiff, that the Court here would appoint him a guardian.
    
      Prescott and Shaw, for the plaintiff.
    
      Townsend appeared for the defendant, Lincoln.
    
    The opinion of the Court was delivered by
   Jackson, J.

It is not doubted that an infant be a mort gagee at common law ; and there is nothing in our statutes *or usages to make it otherwise here. Whether he is the [*18] original grantee, or takes the estate by descent, he is bound by the conditions contained in the conveyance. The mortgage deed must be good in the whole, or void in the whole.

If Trott, the minor, had not had a guardian, he might have been made the sole defendant in this bill, and the Court would appoint him a guardian for this cause. It is still necessary to appoint such a guardian, notwithstanding Lincoln, his legal guardian, is made a defendant. For the latter is not, strictly speaking, sued as guardian , and, if he had had no personal concern in the transactions in question, he need not, and perhaps ought not, to have been included as a defendant in this bill.

But here, Lincoln, the .guardian, is, or at least may be, personally concerned in the event of this suit. One object of the bill is, to ascertain whether he has received any thing, and how much, on account of the debt due to the minor, either from the original debtor, or from the rents and profits of the mortgaged premises. If he had not been made a party, the Court must still have determined what sums he had so received ; and the amount thus ascertained would have been deducted from the sum now due to Trott on the bond. But Lincoln, not being a party, would not be concluded by that decree ; and, in an after settlement between him and his ward, he might undertake to show that he had not réceived so much. This would expose the minor to an inconvenience and hazard, to which he ought not to be subjected.

It is one of the peculiar advantages of chancery jurisdiction, that the Court can bring before them.at once all persons having any interest or concern in the subject in controversy ; .and it is always a valid objection to a bill, if it does not make every such person a party in the suit. It was, therefore, proper, to make Lincoln a defendant in this case. There is nothing against it in the statutes on which this process is founded ; nor can it produce any injury or inconvenience to him. He is called on to state his account of what he has received ; and, if any thing more is charged, he has [* 19] * opportunity to disprove it. By the statute, as well as by the general rules in chancery proceedings, the Court have power to award costs to either party, as equity may require ; and they would probably be always awarded to a defendant in the situation of this guardian, if he should do nothing that should unreasonably delay the plaintiff, and should make a prompt and full disclosure of .the facts within his knowledge.

The tender was rightly made to Lincoln. He, as legal guardian, was the only person authorized to receive the money ; and he, alone, could execute a release of the bond, upon receiving payment. It may be added, also, that he is the only person who is presumed to know what is due on the bond.

It is unnecessary to consider the effect of the statute of 7 Jinn, c. 19, or whether it has been adopted here ; as our statute before mentioned authorizes the Court to award an habere facias seizinam for the plaintiff, if the mortgage be not duly released.

The demurrer of the defendant, Lincoln, is overruled; and he must make answer to the bill.

As to the defendant, Trott, his non-appearance or default cannot prejudice him. The course in chancery, when an infant defendant does not appear voluntarily, is, to send an officer to bring him into court; and then a guardian is appointed to defend his interests in the suit. If he has no friend who will undertake the trust, the Court appoints a suitable person for that purpose. We see no objection to proceeding in this course on the present occasion.

As the decree in this case may, in effect, settle a question in which the defendant, Lincoln, is interested, it seems proper that some other person should be appointed guardian for this suit. From what has appeared in the case, there is no reason to apprehend that any dispute will ever arise between the two defendants, or that any particular inconvenience would result from the appointment of Mr. Lincoln. But it is a general rule, that a guardian appointed by the Court should have no interest in the subject in controversy. 
      
      
        Wyat's Prac. Reg., Title, Infant, 223, 224.
     
      
      
        Brown on Costs, 89. — 1 Equ. As. Ab. 125 in note.— Executors, guardians, and trustees are, in Equity, usually exempt from costs or awarded costs out of the estate in their hands, unless they have greatly misbehaved themselves.
     
      
      
        Wyat's Prac. Reg.s ubi supra.
      
     