Cole v. Franklin Life Ins. Co.

• Decision Date: 17 December 1937
• Docket Number: No. 8333.,8333.
• Citation: 93 F.2d 620
• Parties: COLE v. FRANKLIN LIFE INS. CO.
• Court: U.S. Court of Appeals — Fifth Circuit

93 F.2d 620 (1937)

COLE v. FRANKLIN LIFE INS. CO.

No. 8333.

Circuit Court of Appeals, Fifth Circuit.

December 17, 1937.

Geo. M. Hopkins, of Denton, Tex., for appellant.

E. A. Coker, of Dallas, Tex., and Jesse F. Holt, of Sherman, Tex., for appellee.

Before HUTCHESON and HOLMES, Circuit Judges, and STRUM, District Judge.

HUTCHESON, Circuit Judge.

The litigation out of which this appeal comes was begun in the state court on September 9, 1935, by plaintiff, appellant, suing for herself and as survivor in community of the estate of herself and her deceased husband, to cancel for usury certain deed of trust notes, and the lien securing same, on their farm in Denton county, Tex.

Removed to the federal court, the defendant on December 12, 1935, filed an answer in which it denied the charge of usury, and, as cross-plaintiff, alleging itself to be the owner of the land by purchase on October 1, 1935, at trustee's sale, sued for title and possession, and, in the alternative, for foreclosure of its lien. To its cross-action, in addition to plaintiff-appellant, defendant made the heirs at law of her husband parties. A master was appointed, and, plaintiff having dismissed her suit, all matters arising under the pleadings on defendant's cross-action, including pleas in abatement, (1) a plea of the death of T. A. Cole intestate on April 24, 1935, that the sale defendant relied on was made October 1, 1935, and of the pendency of an administration on his estate taken out March 13, 1936, (2) a plea of a petition for composition and extension of farm debts, filed by plaintiff on February 27, 1936, under the Frazier-Lemke Act as amended, Bankr.Act § 75, 11 U.S.C.A. § 203, were submitted for his findings and report.

The master recommended that the pleas in abatement be overruled, and, upon evidence fully supporting his findings, found that plaintiff's defenses of homestead when the loan was made, of usury in it, and of failure of proof that the deed of trust sale was properly conducted, were without merit. He thought the title under the trustee's deed good against all the defendants in the cross-action, and subject only to administration. He therefore recommended judgment on the cross-action for title and possession of the land, subject, however, to the orderly administration of T. A. Cole's estate in the probate court.

The District Judge, upon consideration of the findings of fact, conclusions of law, and recommendations of the master, confirmed them and entered a decree accordingly. Of the defendants in the cross-action, only the original plaintiff appealed.

While appellant does rather feebly advance other claimed errors, her main contention on this appeal is that Cole, having died leaving a heavily encumbered estate, the power of sale the deed of trust gave was suspended until the affairs of the estate were liquidated by administration in the probate court, and that the sale having occurred within a few months after Cole's death, and an administration having been taken out shortly after the sale, the District Court should have abated the suit until the administration was terminated, or, because of the pending administration, have refused to give the trustee's deed effect.

Appellee insists that the decree is in exact accordance with the teachings of Wiener v. Zweib, 105 Tex. 262, at pages 272 and 274, 141 S.W. 771, 776, 147 S.W. 867, where the court said:

"The trustee's deed, made after the death of the constituent and before the lapse of the time within which an administration might have been sued out on the estate of the grantor, was valid and effective, and passed the title to the land conveyed, subject only to be set aside by an administration for the payment of such preferred claims as might have existed under the law at the time, and as such deed might have interfered with the orderly administration of said estate. Such deed, made under the circumstances of this case, was neither invalid nor in a state of suspense, except in so far as it might have interfered with the due execution of an administration of the estate of the deceased grantor in said deed of trust; but, to the contrary, said deed was valid and effective, and upon its execution passed the title to the purchaser of said land at said sale against the heirs of the deceased and all other persons with the bare exception above stated. * * *

"We are of opinion the plaintiffs below, as the heirs of the grantor, had no right to raise the question of the invalidity of the sale under the deed of trust, on the ground that the sale was made after the death of the grantor and before the period had elapsed in which an administration could have been had on the estate of the grantor, for the reason that such issue could be raised only by the administrator in the interest of the creditors having claims against the estate of such decedent. The heirs of the decedent, as such, had no interest in the question of the validity of such sale of the decedent's property under the deed of trust executed by him, since the invalidity of such sales, under such circumstances, could be declared invalid only as they did or might interfere with the orderly procedure of pending administrations. If there was no administration pending, there could be no interference with its orderly execution; and if an administration was pending the interference with its orderly enforcement could be suggested only by the administrator in the interest of the administration and creditors of the decedent."

It insists that though in that case no administration was ever taken out, and the attack upon the sale was made long after the time for taking one out had expired, the case in principle decides that the death of a mortgagor does not revoke, nor place in a state of suspension, the power of sale, nor does it render invalid a trustee's deed made under the power within the four years in which an administration could be taken out. It argues therefore that it, as a purchaser under such a deed, took the title against the heirs of the deceased and all other persons, subject only to a due administration in the interest of creditors, taken out within the statutory time.

Appellant meets this insistence by pointing out that the language quoted from the Weiner-Zweib opinion must be regarded as dicta, because after a dissent vigorously attacking not only the holding, but the pronouncements made in the course of it, the case was on motion for rehearing decided on a wholly different ground, and it was expressly stated that the facts did not demand a decision of the issue dealt with in the original opinion.

It points out, too, that even if the language quoted in the Weiner opinion be regarded as authoritative upon its facts, the facts of that case were wholly different from this one. There, though the sale was made within the four years for taking out an administration, no administration was ever taken out, nor, as appears from the opinion, was any necessity for administration shown. Further, the attack on the deed was not made until long after the possibility of administration had passed. Here, though the sale was made before the administration was granted, both sale and administration took place within a year after decedent's death, and there was a pending administration when the case was tried below. This case, therefore, argues appellant, is ruled in principle not by cases like Weiner v. Zweib, supra, and Freece v. Truskett, Tex. Com.App., 106 S.W.2d 675, where no administration was ever taken out, and the attack on the deed was made after the time for administering had passed, but by Federal Land Bank v. Tarter, Tex.Civ.App., 86 S.W.2d 523, and the cases it grounds on, and by Britton v. Wilson, Tex.Civ.App., 101 S.W.2d 889. In Tarter's Case¹ the Tenth, and in Britton's the Eighth District Court of Civil Appeals, holding that the power of sale in the mortgage was suspended by its pendency, held invalid a sale and deed made under the power while an administration was pending on the estate of the deceased mortgagor. It is ruled in principle, too, appellant says, by Markham v. Wortham, Tex.Civ.App., 67 S.W. 341; Tiboldi v. Palms, 34 Tex.Civ.App. 318, 78 S.W. 726, 727, writ of error denied in 97 Tex. 414, 79 S.W. 23, and Wilson v. Harris, 91 Tex. 427, 44 S.W. 65, all holding void a sale, under a power in a deed of trust made after the close of an administration.

Appellee, standing steadily to its insistence that not only the decision, but the reasoning of Weiner v. Zweib is controlling in Texas, points out that in Freece v. Truskett, 106 S.W.2d 675, the Supreme Court of Texas, as late as June 23, 1937, quoted with approval from Weiner v. Zweib the very paragraph quoted first above. It points, too, to the fact that a writ of error was granted in Witthaus v. Natali, Tex.Civ.App., 107 S. W.2d...