Case No. 3686 | Tex. | May 15, 1883
The power of sale contained in the mortgage was a power coupled with an interest. It has generally been considered that such powers cannot be revoked by the mortgagor during his life, and that they are irrevocable even by his death. Hunt v. Rousmanier, 8 Wheat., 174" court="SCOTUS" date_filed="1823-03-14" href="https://app.midpage.ai/document/hunt-v-rousmaniers-administrators-85384?utm_source=webapp" opinion_id="85384">8 Wheat., 174.
As the law in this case made the power of sale irrevocable, it could not be rendered more so, by inserting in the mortgage the provision that it should not be revoked by death. But notwithstanding this general rule of law, our courts have long since determined that the exercise of such powers after the death of the constituent is inconsistent with the policy of our probate system. Robertson v. Paul, 16 Tex., 472" court="Tex." date_filed="1856-07-01" href="https://app.midpage.ai/document/robertson-v-paul-4888548?utm_source=webapp" opinion_id="4888548">16 Tex., 472; McLane v. Paschal, 47 Tex., 365" court="Tex." date_filed="1877-07-01" href="https://app.midpage.ai/document/mclane-v-paschal-4892920?utm_source=webapp" opinion_id="4892920">47 Tex., 365.
The covenant contained in the mortgage, that the premises conveyed were not the homestead, would not bind the wife unless perhaps connected with representations by her, which were intended to. deceive and which actually did deceive appellees. Cravens v. Booth, 8 Tex., 245. Married women are not estopped unless their conduct has been intentional and fraudulent. 50 Tex., 41.
In accordance with this view of the law, evidence was admitted upon the trial below that the land was the homestead of Armstrong and his wife at the date of the mortgage.
The only question to be determined by us is, whether the sale made by appellees after the death of Armstrong, and while administration was pending, was valid.
Appellees seem to admit that, if the contract had been made prior to the probate lawtof 1870, the sale would have been void. But they insist that the reasons which led our courts to accept this rule under the former laws (Robertson v. Paul, supra), are not applicable to the provisions of the latter statutes. There seems to have been a diversity of individual opinion among our judges, rather than a conflict of decision upon this subject. 2 Pasch. Dig., 5487; Terry v. Terry, 39 Tex., 311; Woodall v. Rudd, 41 Tex., 375" court="Tex." date_filed="1874-07-01" href="https://app.midpage.ai/document/woodall-v-rudd-4892198?utm_source=webapp" opinion_id="4892198">41 Tex., 375; Wayman v. Reviere, 47 Tex., 357" court="Tex." date_filed="1877-07-01" href="https://app.midpage.ai/document/mayman-v-reviere-4892918?utm_source=webapp" opinion_id="4892918">47 Tex., 357.
It may, however, be regarded as settled that the sale under which appellees claim vested no title in them as against the homestead
In the case before us, the circumstances seem to indicate that the estate of Armstrong was insolvent, and we think that the judgment should be reversed; but as the question of insolvency was not brought to the attention of the court, but the decision proceeded upon other grounds, our opinion is that the cause should be remanded for another trial.
B.EVEHSBD AND BEMANDED. -
[Opinion approved May 15, 1883.]