Wiener v. Zweib

• Decision Date: 27 April 1910
• Citation: 128 S.W. 699
• Parties: WIENER et al. v. ZWEIB.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

128 S.W. 699

WIENER et al. v. ZWEIB.^†

Court of Civil Appeals of Texas.

April 27, 1910.

On Motion for Rehearing, May 25, 1910.

Appeal from District Court, Harris County; Norman G. Kittrell, Judge.

Action by Robert P. Wiener and others against Mary A. Zweib, prosecuted after her death against John H. Ferguson and another. From a judgment for defendants, plaintiffs appeal. Affirmed.

L. B. Moody and E. T. Chew, for appellants. Fisher, Sears & Sears and A. R. & W. P. Hamblen, for appellees.

FLY, J.

This is an action of trespass to try title instituted by Robert P. Wiener, John W. Wiener, and Henry B. Wiener, a minor, suing through his next friend, Robert P. Wiener, against Mary A. Zweib, who died pending the suit, and in an amended petition it was alleged that she had died intestate, and that A. R. Hamblen was appointed administrator of her estate, and that during the administration a certain deed of trust on the land in controversy, executed by Mary A. Zweib, had been foreclosed, and Mrs. E. J. Ferguson had purchased the land at the foreclosure sale, and she and her husband, John H. Ferguson, were made parties defendant. The land involved was 10 1/3 acres off the Wells and Tierwester surveys. The cause was tried before a jury, but after hearing the evidence the court instructed a verdict for the defendants.

The common source was Henry Wiener; appellants claiming the land as his heirs, and appellee claiming it through a sale in January, 1874, made under a deed of trust executed by Henry Wiener to Mary A. Zweib in 1868, to secure a community debt due to said Mary A. Zweib. The necessary facts are found in the further course of this opinion, under the different assignments of error presented by appellants.

The evidence was positive and undisputed that there was no administration on the estate of Henry Wiener, and that the land was sold on January 3, 1874, under a deed of trust executed by him. There was some slight conflict in the evidence as to when Henry Wiener died, although the only real positive testimony showed that he died after 1874. The witnesses for appellants were uncertain as to the time of his death; but Judge W. B. Hamblen swore positively that Henry Wiener lived two or three years after the land was sold under the deed of trust. Judge E. P. Hamblen testified to the same effect. Henry Thompson, the marshal of Houston, testified that Henry Wiener was working for him until he went out of office in 1875. The minutes of a lodge of Odd Fellows, dated November 27, 1877, recited that Henry Wiener died in November, 1877. To this positive and overwhelming testimony was opposed the testimony of Robert P. Wiener that he thought his father died in 1873, and that he was not on good terms with him, and that he lived with his uncle, Isaac Levy, a brother-in-law of Henry Wiener; thought he died in the summer of 1873, but concluded: "I do not know the date of Henry Wiener's death. I think it was in the early seventies." The evidence, though slight and very uncertain, was, perhaps, sufficient to raise an issue as to the time of death of Henry Wiener; but in our view of the case the action of the court in taking that issue from the jury cannot be made the ground for a reversal, because we do not believe that the death of Henry Wiener before the sale under the deed of trust was made would invalidate that sale.

In the case of Robertson's Adm'x v. Paul, 16 Tex. 472, the doctrine was announced that the death of mortgagor would operate as a revocation of the power of sale vested in the trustee; it being admitted that on general principles the death of the mortgagor would have no such effect. The ground upon which the decision of the court was based was that such sales would interfere with the estates of decedents and was therefore in contravention of the statutes regarding estates. It was argued that the statutes require that every "claim for money" must be presented to the administrator for allowance, that the mortgage, or evidence of the debt secured by it, must be presented, accompanied by an affidavit in writing that the claim is just and all legal offsets, payments, and credits have been allowed, and these and other express requirements of the statute would be defeated by permitting a sale under a power. The decision proceeds on the assumption that an administration has been opened on the estate. The same principle has been recognized in cases since that time, and no doctrine is more firmly established in Texas than that a sale under a power after the death of the maker of the deed of trust is void if made while an administration is pending. But where the reason of the rule fails the rule itself must fall to the ground, and if no administration is pending, and the period for opening an administration had expired, no reason can be given for upholding the rule, and consequently it has no application.

This view was first taken of the matter, we believe, in Rogers' Heirs v. Watson, 81 Tex. 400, 17 S. W. 29, in which it was said: "In Robertson's Adm'x v. Paul, and in the other cases cited, there were regular administrations pending at the time of the sale. The sales were not held void upon the ground that the death of mortgagors had revoked the power, because it was recognized that the powers were coupled with an interest, and that they remained in force after the death of the respective constituents. But the exercise of the powers after such deaths and during an administration upon the mortgagors' estate was regarded as inconsistent with our statutes, which give to certain classes of claims against a decedent's estate priority of payment over a debt secured by a lien, even as to the property subject to the incumbrance. But in this case, according to the allegations of the petition, at the time of the sale more than four years had elapsed from the date of Rogers' death, and no administration had ever been had upon his estate. Under the statute as it then existed, and now exists, after a lapse of four years from the death of a person the probate court lost its power to grant letters of administration upon his estate. Rev. St. art. 1827. Consequently the provisions of the statute for establishing and ranking claims against an estate were no longer an obstacle to the sale. * * * Therefore the reason for the rule laid down in the cases cited no longer existed, and we are of opinion that the rule itself should be held no longer applicable."

In the case of Taylor v. Williams, 101 Tex. 388, 108 S. W. 815, the case of Rogers' Heirs v. Watson is approved, and a step further is taken in liberalizing the rule and placing it upon a more conservative and intelligent basis in holding that a power can be executed during the pendency of an independent executorship, and in also holding that the fact that the estate may be taken out of the hands of the independent executor and a regular administration opened would only determine the course thereafter to be had. The court said: "The power in the court ultimately to assume such control no more negatives the prior existence of the power of sale than it negatives the right of action in the court of civil jurisdiction for the enforcement of claims. After the assumption of such control by the probate court, both modes of procedure may be superseded by that prescribed in the probate law; but this does not prove that they were not authorized so long as the independent control of the executor continued." The Supreme Court, in that case, did not decide the precise question in this case, and in fact declined to decide it; but the logic of the opinion can lead to no other result than to the ruling that a sale made under a power before an administration is begun on an estate is not void, but merely voidable in case an administration should be begun within the four years prescribed by the statute. Such sale would not interfere with the due administration of the estate, for the moment that the probate court took control of the estate the sale would be superseded and the mortgagee be relegated to the collection of his debt by the methods required by law in cases of administration. No more would a sale before administration, under circumstances now being discussed, interfere with the law in regard to administering estates than would the sale under a power when an independent executor is in charge of the estate, nor when a suit is instituted on a claim to enforce payment before administration. In either case an administration might be begun, and the opening of administration within the legal time would have the same effect in either instance.

In this case no administration was ever had on the estate of Henry Wiener, and, although the sale under the power may have been made before the expiration of four years from the time of his death, upon what reasonable ground can it be held that the sale was invalid? It did not tend in any way to interfere with an administration of the estate, because no such administration ever existed. It cannot with any reason or justice be held that the mortgagee should have enforced his claim through the district court, or that he should have gone to the expense of administering on the estate to enforce his lien and collect his debt. If in the case of the independent executor a power of sale could be executed, it would seem that the power could be executed when no administration was pending, and which in fact was never opened. It may be that there would be stronger probabilities of an administration in the one case than the other; but those chances would be assumed by the party invoking the power of sale in either instance, and could not affect the right to make the sale.

In no case has it been held that a sale under a power after the death of the mortgagor, when no administration had been begun, was void, although in the case of Buchanan v. Monroe, 22 Tex. 537, it was held that the death of the mortgagor operated as a virtual revocation of the power of sale,...