Page:North Dakota Reports (vol. 48).pdf/127

 of the defendants, the mother of the wards, holds the legal title, and for general relief, where it appears that the estate of the wards, consisting of a two-thirds interest in an unimproved quarter section of land, had been sold in probate court; that, in lieu of the cash consideration, the purchaser had conveyed a quarter section of equal value to the mother of the wards, who, in turn, had executed a mortgage upon the land so conveyed to her representing the value of the estate of the wards in the quarter section sold; that, owing to disqualification of the guardian making the sale, a second guardian, the plaintiff, was appointed, who initiated proceedings in probate court to legalize the first sale, but refused to receive the mortgage and accumulated interest as representing the estate of the wards; that the mother remarried, and she, her husband and children, moved onto the land so deeded to her, and put improvements thereon equal or exceeding in value the original value of the land, and that the mother and her present husband maintained thereon a home for the wards—it is held, the evidence does not show any attempt to defeat the interests of the minors.

Guardian and ward—value of land with accrued interest directed to be paid over to guardian; investment on second mortgages not authorized.

2. In the circumstances disclosed, equity requires that the value of the estate of the minors in the unimproved quarter section sold, plus the accrued interest, be paid over to the present guardian in cash, and that the legal titles be quieted in accordance with the conveyances made.

Appeal from the District Court of Divide County, Leighton, J.

Reversed and remanded.

George P. Homnes, for the appellants.

All sales of real estate of wards must be for cash, or for part cash and part deferred payments not to exceed three years, bearing date from date of sale as in the discretion of the judge is most beneficial to the ward. § 8911 Comp. Laws 1913; 12 R.C. L. § 26 p. 1127.

A guardian may lawfully exchange personal property of the ward for other personal property without order of the court when a prudent man in the conduct of his affairs would have done so. He cannot exchange his realty without order of court, unless this power has been conferred on him by deed or will. 21 Cyc. p. 84.

That a guardian may lawfully exchange personal property in advance