McLane v. Paschal

• Decision Date: 01 January 1877
• Citation: 47 Tex. 365
• Parties: H. H. MCLANE v. MARY C. PASCHAL.
• Court: Texas Supreme Court

47 Tex. 365

H. H. MCLANE

v.MARY C. PASCHAL.

Supreme Court of Texas.

1877.

APPEAL from Bexar. Tried below before the Hon. George H. Noonan.

On the 22d of April, 1859, I. A. & G. W. Paschal executed their joint and several promissory note to William McLane, for $7,000, due in twelve months, with twelve per cent. interest.

On the same day, the Paschals, with the appellee, Mary C. Paschal, wife of the said I. A. Paschal, to secure the payment of the indebtedness, executed and delivered a trust deed. (The language in which the trust property was described in that trust deed will be found in the syllabus of this case--6.)

It would seem, from the recitals in the trust deed, that the debt was really the individual debt of I. A. Paschal. This trust deed included in the property incumbered what was then known as the homestead, in the city of San Antonio, of I. A. and Mary C. Paschal, being blocks 27 and 31, in upper San Antonio; also two and one half acres, used as a garden, and adjoining the homestead, a street intervening.

I. A. Paschal died in 1868. His estate was administered upon in Bexar county. The debt was presented, and approved as a just claim against the estate, on the 30th September, 1868.

At the September Term of the Probate Court, Mrs. Paschal filed her petition, praying the court to set aside to her the homestead, as well as other allowances. Objection was made, on the part of McLane, to any order setting aside the homestead. Issue was joined in the Probate Court, which, by its judgment, refused to set aside the property claimed as a homestead, and sustained the objections of McLane. From this judgment, Mrs. Paschal appealed to the District Court, which set aside the judgment of the Probate Court, and proceeded to decree the homestead to Mrs. Paschal, as well as the two-and-one-half-acre garden lot. The court also proceeds to set aside, cancel, and hold for naught all title, claim of title, lien, or security on said property set up by McLane by virtue of the trust deed. In the mean time, William McLane had died, and H. H. McLane, who became the owner of the claim, made himself a party to the suit, and prosecuted this appeal from the judgment of the District Court.

The statement of facts shows that all other lawful allowances and exemptions were made by the Probate Court to Mrs. Paschal.

T. T. Teel, for appellee.--The homestead cannot be sold under a deed of trust after the death of the husband. (Robertson v. Paul, 16 Tex., 474;Smith v. Elliott, 39 Tex., 201;Wood v. Wheeler, 7 Tex., 13;McCreery v. Fortson, 35 Tex., 648;Baxter v. Dear, 24 Tex., 21.)

The deed of trust of Paschal and wife to McLane is void, because the acknowledgment of Mrs. Paschal is not in conformity to law. (Paschal's Dig., art. 1003; see the Record, p. 14, and the opinion in Smith v. Elliott, supra;Cross v. Everts, 28 Tex., 532;Roy v. Bremond, 22 Tex., 627;Callahan v. Patterson, 4 Tex., 67;Nichols v. Gordon, 25 Tex. Supp., 112.)

The learned counsel for the appellant complains that more was set aside by the court than was claimed by Mrs. Paschal. We think he errs in this. In her petition, Mrs. Paschal asks the court to set aside her homestead, situated in San Antonio, and claimed by her as such. This is the description of the homestead.

There was sufficient evidence for the court to render the decree. This court will see that the metes and bounds are definitely described.

The homestead vests in the heirs or the head of the family upon the death of either the husband or wife. “In no event can it be converted to the use of creditors. They have no interest in such property.” (Sossaman v. Powell, 21 Tex., 665.)

The principles involved in this case have been settled by our own courts, and we believe that this court will not disturb the repeated decisions. We call the attention of the court to the authorities collated in the exhaustive chapter on HOMESTEADS, in Paschal's Digest of Decisions, secs. 14537, 14636.

S. G. Newton, for appellant.

MOORE, ASSOCIATE JUSTICE.

With whatever force of reason those who have sought to maintain a different conclusion have endeavored to impress their views, and however unsatisfactorily, as it may seem to them, their arguments may have been met, it must be admitted that it is now finally and definitely settled by this court, that a deed of trust to secure the payment of a debt does not operate as an absolute transfer of the property to which it refers, to the trustee, upon the trust mentioned in the deed, defeasible upon the conditions therein stipulated; but that such instrument is, in legal effect, a mere mortgage, with a power to sell. And though the death of the mortgagor does not, on general principles, revoke this power, yet its exercise by the trustee would be inconsistent and in conflict with our statutes governing the settlement of estates of deceased persons. It cannot, therefore, be executed by the trustee after the death of the constituent. And whatever rights may be secured to the creditor by such deed, they can only be enforced after the death of the debtor, through and by aid of the court. It naturally, if not inevitably follows, that such deed, instead of operating as an absolute and unconditional security for the payment of the debt for which it purports to be given, has this effect only during the life of the debtor. And after his death it only secures the creditor priority over such claims against the debtor's estate, as by the statute it is entitled to in the due course of administration.

And it is not now open to controversy that funeral expenses, expenses of last sickness, expenses of administration, and those incurred in the preservation and management of the estate, as well as the allowances authorized to be made to the widow and children in lieu of a homestead, and other property exempt from forced sale, where such property does not exist in kind, have preference over specific liens created in the lifetime of the decedent, except where such lien is a security for the purchase-money of the property to which it is attached.

Whether the fact that the wife may have joined her husband in creating the lien (I refer, of course, to cases under the former law) will bar her from claiming such allowance in preference to the creditor, has not, so far as I am aware, been directly passed upon by the court. And it will be time enough to consider it when it arises. Here, although the...