
    The General Synod of the Reformed Church, Plaintiff, v. Florinda O’Brien et al., Defendants.
    (Supreme Court — Kings Special Term,
    August, 1895.)
    A widow who goes into possession of the real estate of which her intestate husband died seized, thereby becomes guardian in socage of their minor children, and a purchase by her of such real estate at a subsequent foreclosure sale of a mortgage given by her husband inures to the benefit of the said children, at their election.
    
      An acceptance of a subsequent conveyance by her to one of the children, who had come of age is not a ratification of her individual purchase by such child.
    A mortgage made by her after her purchase covers only the interest which' she had prior to the purchase, as the mortgagee must be deemed to have taken with notice of her relation to the children.
    Motion for an order to put the purchaser at foreclosure sale in possession. The mortgage was made by the widow after she had purchased the property at the foreclosure sale of a mortgage given by her deceased husband. The other facts appear in the opinion.
    
      A. P. Bates, for the motion.
    
      K. F. Koeplee, opposed.
   Gaynor, J.

Upon the father’s death intestate the title to the land became vested in his nine children as tenants in common, subject to the mortgage and to the widow’s dower. One of the children was by a former marriage. The widow took possession of the property, and thereby became charged with the relation of guardian in socage to her said eight children, who were all infants. One of her said children afterwards dying, she became vested with a life estate in such child’s share. The widow’s duty as guardian in socage was to apply the rents to the interest upon the mortgage; and even beyond that to prevent the foreclosure of the mortgage. 2 R. S. 153, sec. 20. It should be presumed on this motion that she failed in this duty, for the mortgage was foreclosed, and the fact cannot be appropriately litigated hereón. At the sale she became the purchaser, individually. It is true she had an individual interest to protect; but it seems that did not make her free to purchase for herself. Knolls v. Barnhart, 71 N. Y. 474; Scholle v. Scholle, 101 id. 167. Where a trust relation is inconsistent with an individual interest of the trustee, the former is deemed paramount. A trustee can have no duty to himself inconsistent with his trust duty. Here wards have the right to elect to take the benefit of the purchase. But leaving that question for future decision in any action brought to adjust the rights between the parties, it remains that if the widow through neglect of her duties as guardian in socage to apply the rents on the mortgage, or otherwise, suffered the foreclosure to occur, she could not get title against her wards through the sale caused by such breach of trust. Carpenter v. Carpenter, 131 N. Y. 101.

The present foreclosure action was of a mortgage given by the widow after she took title, as aforesaid, under the former-foreclosure.- The said child by the former wife had become of age before that foreclosure, and as no trust relation then existed between her and the widow, the widow acquired her-interest thereby. It follows that the widow’s mortgage-covered her dower interest, her life estate in the share of her said deceased child and the share of the said child by the former wife. Some» time after making such mortgage the widow made what purported to be a warrantee deed of conveyance of the entire property to her son Reran, the same being in so many words “subject to all mortgages and liens, now on said premises ” ; and for that reason he was made a party defendant to this action. It is claimed that his acceptance of such conveyance made the said mortgage a lien upon his share, or paramount to his title thereto. This seems not so. His mother had. a right to execute the mortgage, but it could cover only her interest; and his acceptance of the said conveyance could not enlarge the interest of the mortgagee. There is no foundation for an estoppel against him in favor of the mortgagee. There is no privity between them ; and his acceptance of the deed in no way induced or affected the mortgagee. Nor was his acceptance of the conveyance an unequivocal ratification of the act of his mother in purchasing individually. On the contrary, such acceptance is consistent with an intention on his part to claim that she purchased in part as his trustee, and that the mortgagee got no-lien except upon her individual interest. He purchased subject to her mortgage on the premises, whatever the lien óf it was. He did not thereby extend the lien.

Nor can the mortgagee be treated on this motion as having acted in good faith and without notice. The record of the first foreclosure showed the interests and probable relation of the widow and children, and that was enough to put any one dealing with" the title upon notice. Kirsch v. Tozier, 143 N. Y. 390.

The said son having an apparent interest in the premises which is prior to the mortgage, and being in possession thereunder, the motion for an order putting the purchaser into that possession must be denied; but as the purchaser is at least a tenant in common with ' right to the possession of two undivided ninths, the motion is granted to that extent; the order to be entered not to be res adjudicada in respect of the rights or interests of either party in any action that may be brought.

Ordered accordingly.  