The Opinion of the Court was delivered by
Caton, J.By the application of a few well understood rules of Chancery Law, no difficulty can be experienced in determining the sufficiency of the case presented by the original and amended bills. If this were to be considered purely as a bill to redeem from an equitable mortgage, as such, it would be manifestly insufficient; for it is, under ordinary circumstances, essential to such a bill that it contain an offer, clearly expressed, to pay the redemption money. 18 Johns. 560, 570. The case made here, however, presents itself to the Court upon other and broader grounds. This is an application to the Court, on behalf of an infant, for an order to dispose of a part of the infant’s estate for the purpose of removing an incumbrance upon it; and that such estate may bring its full- value in the market, or may be made available for the objects proposed without a sacrifice, it becomes necessary that the Court should determine the nature and extent of the infant’s interest in the premises. Notwithstanding the bill is voluminous, all that is really essential to a full understanding of the equities as presented by the bill, so far as is necessary for the decision of the case, can be stated in few words.
It appears that in 1839, Levi Moulthrop was the owner of valuable improvements on several tracts of public land, which are now the premises in controversy, which he was desirous of purchasing of the government; and in order to procure the necessary funds for that purpose, he sent the defendant Erastus Moulthrop to Connecticut,, who negotiated a loan with the defendant Benjamin Sackett, for the sum of $530-00, on a credit of two years. It was a part of this arrangement that Simmons Sackett should come from Ohio to Illinois to see to the investing and security of the money, and that his expenses and a reasonable compensation for his services should be considered as a part of the loan, and secured upon the land. In pursuance of that arrangement, the land was purchased by Simmons Sackett, and the title taken in his own name in trust for the purpose of securing the loan, and he executed a bond to Levi and Erastus Moulthrop, conditioned for the conveyance of the premises to them upon the payment of $630-00 with interest in two years. No very clear reason is given in the bill, showing why the name of Erastus was put in the bond with that of Levi, and whether the averments of'the bill are sufficient to show that the whole transaction was for the benefit of Levi, it is not necessary now to determine. Within a year after this, Levi Moulthrop died, leaving the complainant Margaret his widow, and shortly after his death was born the complainant Levi Moulthrop, who is his only heir at law. The bond for a deed was in the possession of Levi Moulthrop at the time of his death, of which Erastus soon after improperly obtained the possession, and afterwards delivered it up to Benjamin Sackett. A long history of negotiations is related in the bill, which took place between the friends of the infant and the Sacketts after the death of Levi Moulthrop, which we do not deem it necessary to notice. Horace Miller, in 1846, purchased and received a conveyance of the lands from Simmons Sackett, and afterwards conveyed to Gardiner C. Miller and Hiram Waterman, all of"whom were chargeable with notice of the infant’s interest. The statements of the bill are admitted to be true by the demurrer, which was sustained by the Circuit Court, and the bill dismissed.
That the infant, Levi Moulthrop, has an equitable interest in these lands, if the statements of this bill are true, does not admit of controversy. The money with which the land was purchased, was loaned to his ancestor by Benjamin Sackett, and the title vested in Simmons Sackett to secure the re-payment of the loan. The money of Levi Moulthrop purchased the land, and the law will raise a resulting trust in his favor. So far as the rights of the infant in the land are concerned, this case is identical in principle, with those of Boyd v. McLean, 1 Johns. Ch. R. 582, and Page v. Page, 8 New Hamp. 187. Where the facts are admitted, as they are in this case, to enter upon a discussion, or to refer further to authorities to prove that the law will raise a resulting trust in favor of one to whom the loan was made, and for whom the land was purchased, would be a work of supererogation. If it were important to determine now the exact extent of the complainant’s rights, it might be necessary to refer more particularly to the precise statements of the bill. For the present purpose it is sufficient that the infant has rights there, which it is the duty of the Court to protect. That these lands were incumbered for the re-payment of the money advanced to procure the title from the government, cannot be denied; but when that is paid, neither the Sacketts, nor the Millers, nor Waterman, have any further interest in the land. Nor, as the case stands now, can the infant be charged with those extraordinary expenses that have been incurred in the course of the various negotiations, which have transpired since the death of his father, and which have swelled the amount now claimed to near $120(M)0. Neither the mother of the infant, nor Mrs. George, nor any other person, had a right so to inter-meddle with the infant’s interest as to create incumbrances upon it. No guardian seems ever to have been appointed for the infant, nor would a guardian have been allowed to have embarrassed or trifled.with the infant’s estate, without the express order of the Court. The Court of Equity is the general guardian of all infants within its jurisdiction, and it is one of its most sacred duties to watch with a vigilant eye, and see that their rights and interests are not trifled away or sacrificed, and that they are not made the prey of either their own kindred or strangers. They are incapable of protecting their own interests, and hence cannot be guilty of •ilaches. Davis v. Harkness, 1 Gilm. 178.
Whether the complainant Margaret, after she attained her majority, further incumbered whatever interest she has as the widow of Levi Moulthrop, deceased, it is unnecessary for us now to inquire.
The jurisdiction of the Court of Chancery to order the sale of the whole, or a portion of the estate of an infant, or to order it to be incumbered by mortgage whenever the interest of the infant demands it, will not be denied, whether that interest be of a legal or an equitable nature. Such is one of the objects of this suit, and it Certainly seems that the case made by the bill show's a strong necessity for the exercise of that power. As I have already shown, the infant has an equitable interest in this land of considerable value, for the property is averred to be worth seme three thousand dollars. The interest of the infant manifestly requires that the lien or incumbrance upon the estate should be discharged. The bill shows that the infant has no property or means out of which the necessary funds can be raised to discharge this incumbrance, except the property itself. The very statement of the case demonstrates the necessity of the interposition of the Court. But before the Court will order a sale of the infant’s interest, it must ascertain that he has an interest there, and also the nature, character and extent of that interest. This is necessary for the double purpose of securing the full value of the portion sold, and to see that it is not infringing upon the rights of others. Hence the necessity of bringing all parties who appear to be interested either legally or equitably in the estate before the Court, that they may assert and defend their rights. But it is objected that as Erastus Moulthrop’s interest appears to be with the complainants rather than against them, he should have been joined with the complainants instead of being made a defendant. But this is not so. If he did not choose to unite with the complainants, it is hardly necessary to say that it was the proper course to make him a defendant. He was then properly before the Court, and bound to lock after his interests, whatever they were. All parties being before the Court, and a case being made which requires its interposition in order to protect the rights of the infant, in the exercise of its proper jurisdiction for that purpose, it must determine what w'as the nature of the original transaction.'
This, as we have before seen, was in the nature of a mortgage,'or security for* a loan of money, and as a necessary incident, the Court must determine the amount of the incumbrance. This, too, it has the means of doing properly, for all the parties are before it who will be interested in taking the account. This is indispensably necessary, also, in order to enable the Court to determine how much money shall be raised out of the infant’s estate. When this is done, the Court will, as a- matter of course, direct the proper ap- , plication of the fund thus raised, in extinguishment of the lien. Thus will the Court, having properly acquired jurisdiction, not only of the subject matter, but of all the parties interested, do- complete justice between all. It is for the very purpose of thus doing ample justice, that Courts of Equity require all parties interested to be brought before them. This very case shows the propriety of the rule, that when the Court once acquires jurisdiction of a cause, it will retain it so as to do complete justice to all interested. It would be unreasonable and vexatious for the Court now to say, that it will ascertain and determine the rights of the parties, and will order the necessary funds to be raised to discharge the lien, and then stop short without directing the proper application of the funds. Should the Court, with all the means before it of closing the whole affair at once, with justice to all, refuse to settle it in this proceeding, and require another bill to be filed after the complainants are able to make a more formal offer to redeem ? Such a proceeding would be equally detrimental to both parties, and in manifest violation of one of the plainest rules of Equity. Of what benefit could it be to the defendants to be brought in to defend another suit, when all the questions in controversy had been already settled in this ? The very statement of the proposition shows its impropriety. The misapprehension consists in supposing that the primary object of the bill is to redeem. That is not so. The first and great object of the bill is to invoke the aid of the Court to raise a fund out of the infant’s estate to redeem with, in order to do which properly, it is indispensable to settle the rights of the parties, and when this is done, it follows as an incident, that the fund thus raised shall be applied, and the incumbrance discharged.
The view which wre take of the case, shows that the authorities referred to, proving that' a tender must be made and the money brought into Court, when it is called upon to enforce a specific performance of an agreement for the sale- of land, do not applj\ Were the incidental although ultimate object to-be accomplished, the specific performance of such an agreement, instead of the satisfaction and removal of an incumbrance, justice would seem to require the application of the same rule.
Without this, there would be a wrong without a remedj. We should be loth to admit that the power of the Court is inadequate to protect the rights of the infant, and yet such would be the case were we to hold that the Court cannot grant relief in this case. The Court must do for the infant, all that an adult could do for himself, without imputing to him neglect for not having acted when he was incapable of acting. If the defendants were not satisfied with the procrastination, they should have brought the infant before the Court, and asked its interference. The kind of relief here indicated is asked for in the prayer of the bill, but whether the Court will order the money to be raised by a sale or a mortgage of the estate, or in some other appropriate way, the Court will determine at the proper time, as may seem most for the interest of the infant. We have no doubt but a proper case for relief is substantially made out by the bill, and that the demurrer was improperly sustained.
The decree of the Circuit Court is reversed with costs, and the suit remanded, with leave to the defendants to withdraw their demurrer and answer to the merits of the bill as they shall be advised.
Decree reversed.