John Robertson's Adm'x v. Paul

• Decision Date: 01 January 1856
• Citation: 16 Tex. 472
• Parties: JOHN ROBERTSON'S ADM'X v. JAMES PAUL.
• Court: Texas Supreme Court

16 Tex. 472

JOHN ROBERTSON'S ADM'X

v.JAMES PAUL.

Supreme Court of Texas.

1856.

A power to sell contained in a mortgage or deed of trust given to secure the payment of a debt, although not revoked, on general principles, by the death of the constituent, is inconsistent with our statutes respecting the settlement of estates of deceased persons, and therefore cannot be executed after the death of the constituent. [22 Tex. 537;27 Tex. 80.]

It seems that funeral expenses, expenses of the last sickness, expenses of administration, the allowance to the widow and children and the expenses incurred in the preservation, safe keeping and management of the estate, have preference over a specific lien created in the lifetime of the decedent, except where such lien is for the purchase money of the property to which it is attached.

The principle recognized, that the payment of the purchase money is the essential constituent of title to real estate. [6 Tex. 174;11 Tex. 597;27 Tex. 52, 129, 249.]

Appeal from Galveston. Tried before the Hon. Nelson H. Munger.

Suit by the appellee against appellant for the balance due on a promissory note of the defendant's intestate. There was no controversy about the facts. The jury found a special verdict as follows:

John Robertson, in his lifetime, to wit: on the 4th day of August, 1853, executed his note in favor of plaintiff for $600, payable twelve months after date, with interest at twelve per cent. per annum from date until paid; and that at the same time he executed a deed of trust on lot number twelve, in block number six hundred and eighty-five in the city of Galveston, to Oscar Farish and Albert Ball as trustees, to secure the payment of said note; that on the _______ day of September, 1854, said John Robertson departed this life, intestate; that on the _______ day of October, 1854, the defendant, who was the surviving widow of said John Robertson, was duly appointed by the probate court of Galveston county, administratrix on his estate; that on the third day of February, 1855, Oscar Farish, one of the trustees, at the request of the plaintiff, sold said lot, complying in all things with the requirements of said deed of trust; that said sale was made after the death of said John Robertson; that at the time of said sale, the note mentioned had not been presented to the administratrix for allowance; that no part of the said note had been paid at the time the sale was made by the trustee; that said James Paul purchased said lot at said sale, he being the highest and best bidder for the same, at the sum of five hundred and twenty-five dollars; that said trustee charged as expenses and commission for executing said trust the sum of thirty-three dollars and twenty-five cents, which was paid to him by said James Paul, and the balance of the purchase money, amounting to the sum of four hundred and ninety-one dollars and seventy-five cents, was entered by said trustee as a credit on said note, and a deed for said lot was made and executed by said Farish as said trustee to said Paul, as the purchaser of said lot, dated the 3d day of February, 1855; that on the 9th day of February, 1855, said note with the deed of trust and affidavit annexed to the petition, was presented to said administratrix for allowance as a claim against the estate of said John Robertson, which by her was rejected; that the said lot was embraced and included in the inventory of said estate made by said administratrix, and was appraised at the sum of one thousand dollars; that said note was given for the purchase money of said lot, which was purchased by said John Robertson from said Paul during the coverture between said Robertson and the defendant, and was held as community property; that if said credit shall be allowed, which is entered on said note, there will remain due on said note, at this time, two hundred and twenty-five 59-100 dollars, including interest; and if said credit shall not be allowed, there will be due on said note the sum of seven hundred and thirty-four 40-100 dollars, including interest.

The deed of trust authorized either of the trustees named to execute it. The petition and answer both alleged all the material facts, and both contained a prayer for general relief.

D. D. Atchison, for appellant.

J. B. & G. A. Jones, for appellee.

WHEELER, J.

The validity of the plaintiff's demand, and his right to recover in this action, must depend upon the authority of the trustee to sell under the power, after the death of the debtor. The instrument, called a deed of trust, was but a mortgage containing a power to sell. The practice of inserting such a power in mortgages had its origin in England, in consequence of the inconveniences attending the existing practice of foreclosure in that country. And though its propriety was at one time questioned, as being an extraordinary and dangerous power (1 Madd. Ch. 160), it is now firmly established. (2 Story Eq. sec. 1027.) It is usual to add to the mortgage a power of sale in case of default. (4 Kent Com. 146.) The power may be given to the mortgagee, or it may be placed in a third person, as trustee for both parties, as in this instance. “These powers fall under the class of powers appendant or annexed to the estate, and they are powers coupled with an interest, and are irrevocable, and are deemed part of the mortgage security, and vest in any person who, by...