86 S.W.2d 523 | Tex. App. | 1935
Appellant, Federal Land Bank of Houston, a corporation, brought this suit in the district court to recover of appellees, Sallie C. Tarter, as administratrix of the estate of A. J. Tarter and Texana Tarter, deceased, said Sallie C. Tarter, individually, and the other children and heirs of said decedents, three certain tracts of land alleged to contain 200.18 acres, but in fact containing at least 206.03 acres. Appellees by appropriate pleadings claimed that the land sued for constituted a part of the estate of said A. J. and Texana Tarter; that title thereto was vested in them as the lawful heirs of said decedents, and that appellant had no title thereto. A. J. Tarter and Texana Tarter were husband and wife, and the property involved herein belonged to their community estate. On December 15, 1923, said Tarter and wife executed to appellant their note for the sum of $6,900, and secured the same by a deed of trust on two of the tracts of land involved herein; said tracts being described as the 42.2-acre tract and the 57.86-acre tract. These two tracts of land were included in the homestead designation by Tarter and wife theretofore filed, but the validity of the lien is not questioned. On August 18, 1926, Tarter and wife executed to appellant another note for the sum of $4,100, and secured both said note and their $6,900 note as aforesaid by a deed of trust lien on all three of the tracts of land involved in this suit. A part of said indebtedness was in renewal of a mechanic's lien which covered the first two tracts involved herein, but the remainder thereof was not shown to constitute a valid lien on said two homestead tracts.
Texana Tarter died September 15, 1926, and A. J. Tarter died November 13, 1926. Both died intestate. Administration was granted on their joint estate on March 3, 1927, and appellee Sallie C. Tarter qualified immediately thereafter as administratrix thereof. Said administration was pending at the time of the trial herein, and the validity thereof is not questioned. The said Tarter and wife left surviving them the said Sallie C. Tarter, an unmarried daughter residing with them at the time of their death, and two minor children, besides other children and heirs who *524 were not entitled to homestead rights. The county court, on December 1, 1928, set aside to said Sallie C. Tarter, an unmarried daughter, and the two minor children as a homestead all of the land sued for herein and also 6 acres additional out of another survey, which tract is not embraced in either of the deeds of trust given by said Tarter to appellant. The lands so set aside as homestead were all the lands included in the inventory, and amounted in the aggregate, according to some of the testimony, to approximately 212 acres. Said several tracts were contiguous and constituted a single body of land. That they were all used for homestead purposes by Tarter and wife at the time of their death is not questioned. The order setting said lands aside charged them with such indebtedness of the estate as was legally enforceable against them. Appellant never presented its claim against said estate to the administratrix for allowance, but on February 3, 1931, caused the land in controversy to be sold under a power contained in said last-mentioned deed of trust in satisfaction of both notes held by it and became the purchaser of said land at said sale for the sum of $2,000, and immediately thereafter entered into possession thereof. The inventory showed that all the lands belonging to the estate as aforesaid were appraised at the lump sum of $15,000; that the personal property was appraised at $1,132, and that the claims due the estate amounted in the aggregate to the sum of $2,056.25.
The case was tried by the court without a jury, and judgment was rendered that appellant take nothing by its suit and that appellees recover of appellant on their cross-action title and possession of all the land sued for herein, and that they also recover of appellant the sum of $1,500, the rental value of said lands for the years 1931 and 1932, during which time appellant held possession thereof.
Said act was, however, superseded, and said section repealed, by the Probate Act of 1876. 8 Gammel's Laws, p. 929 et seq. The last act as modified by the commissioners became title 37 of the Revised Statutes of 1879. (Art. 1789 et seq.). That title as amended from time to time constitutes title 54 of the Revised Statutes of 1925 (article 3290 et seq.), and regulates present probate procedure. Continuously since the enactment of the Probate Act of 1876, the estate of a decedent has been held to include his entire property, both exempt and nonexempt, and the jurisdiction of the probate court over the same for the purposes contemplated by the statute fully recognized. To this end an inventory of all the property belonging to the estate of deceased is required in every case to be prepared and filed. Rev. Stat. arts. 3408, 3436, and 3666. The county court is authorized to ascertain the status of the property shown by the inventory and to set aside the homestead and other exempt property for the use of the surviving constituents of the family, or to make allowances in lieu thereof and to provide for the payment of the same. Rev. Stat. arts. 3485 and 3486. It is expressly provided in the same chapter that the homestead shall not be liable for the payment of any debts of the estate except for purchase money, taxes due thereon, or for work and material used in constructing improvements *525
thereon, for which a valid mechanic's lien has been fixed, and that no property on which a valid lien exists shall be set aside as exempt until the debt secured by such lien shall be first discharged. Rev. Stat. arts. 3499 and 3492. In this connection it is proper to note the transactions involved in this case transpired before the amendment of article 3492 by the Forty-Second Legislature, c. 236 (Vernon's Ann. Civ. St. art. 3492). These articles expressly recognize that debts of a decedent secured by valid liens on his exempt property including the homestead are none the less debts of his estate because so secured and that the liens securing the same are enforceable notwithstanding the exempt character of the property on which the same are fixed. Ample provision is made for the establishment of claims against the estate and for the enforcement of the same when secured by liens on property belonging thereto. For the protection of the estate claims are required to be verified, allowed by the administrator, or established by suit and an order or a judgment of the court approving and classifying the same made and entered. Sales of property to pay such claims are required to be reported to the court and confirmed before they become effective. Rev. Stat. art. 3584. Confirmation may be refused if the amount bid is inadequate. 14 Tex.Jur. p. 237, § 457; 14 Tex.Jur. p. 242, § 463. After the application of the proceeds of the sale of encumbered property to the secured debt, the remainder unpaid thereon constitutes a claim against the general assets of the estate. 14 Tex.Jur. p. 180, § 397; Rev. Stat. art. 3531, subd. 3; Walker v. Kerr,
The Probate Law of 1876 was enacted shortly after the adoption of our present Constitution. Appellant stresses the provisions of the latter instrument which declare that "on the death of the husband or wife, or both, the homestead shall descend and vest in like manner as other real property of the deceased, and shall *526
be governed by the same laws of descent and distribution." Const. art. 16, § 52. The vesting of title to property on death of the owner is not regulated by the Constitution, but by the terms of Revised Statutes, art. 3314, and by title 48, on Descent and Distribution (article 2570 et seq.). Said article 3314 provides that, when a person dies intestate, his estate shall vest immediately in his heirs, subject, however, to the payment of debts except such as may be exempted by law. The statutes following the provisions of other sections of the Constitution exempt the homestead from liability for the payment of all debts of the estate except those enumerated in article 3499 hereinbefore cited, but as to the debts so enumerated no exemption exists. Our Supreme Court, in Thompson v. Kay,
The basic issue involved in appellant's contentions in this case is whether the county court has potential jurisdiction to establish debts secured by a lien on the homestead and to enforce such lien by the sale thereof for the payment of such debts. The constitutional grant of jurisdiction to the county court in matters of probate is general, and includes express authority to transact all business pertaining to deceased persons, including the settlement, partition, and distribution of their estates. Const. art. 5, § 16. The procedure for the exercise of that jurisdiction is prescribed by statutory law. Some of the material provisions of our statutes with reference to establishing and enforcing secured claims against an estate have been hereinbefore cited and discussed. We have found nothing in our present probate statutes inhibiting the enforcement in administration proceedings of a valid lien against a homestead. Our Supreme Court, in Hensel v. International Bldg. Loan Ass'n,
That case was cited, and the rule announced therein followed, in Fossett v. McMahan,
"We agree with the Court of Civil Appeals that, to give such a claim precedence over the homestead right adjudged by the probate court to the claimants thereof, such lien is required by the probate law to be enforced in the administration proceedings. Fossett v. McMahan,
In the case of Gregory v. Ward,
See, in this connection, Hoefling v. Hoefling,
There is little, if any, conflict between the cases cited and relied on by appellant and those recited above. We have heretofore cited in its chronological order the Probate Act of 1870 and quoted section 26 therefrom. This section was properly applied in cases arising while it was in force. Wiener v. Zweib,
"We have various statutes the effect of which is to withdraw homestead property from the jurisdiction of the probate court and deny it power to administer the homestead estate except where debts exist for which suchan estate is constitutionally *528 liable. See, generally, R.S. arts. 3485, 3488, 3493, 3494, 3495, 3496, 3498, 3499, 3500, 3501. Space does not permit a statement of the substance of these several statutes, but we will direct particular attention to article 3499. The Constitution, in section 50, art. 16, declares that the homestead of the family `shall be, and is hereby protected from forced sale, for the payment of all debts except,' etc. Article 3499 in similar language exempts the homestead estate from liability for all debts of the decedent, except those for which it may be liable under the Constitution. These constitutional and statutory exemptions amount to a withdrawal of the homestead from the jurisdiction of probate courts in the absence of liabilities for which it may be heldunder the Constitution and statutes, as appears from the authorities cited and to be cited." (Italics ours.)
Some of the cases cited involved an application of the general rule that a single debt does not create a necessity for administration. 13 Tex.Jur. p. 594, § 12. It would further appear that, when the homestead is the only property belonging to an estate and it is encumbered by a single enforceable lien, no administration would be necessary. See, in this connection, Kimmons v. Abraham (Tex.Civ.App.)
The judgment of the trial court is affirmed, but nothing herein shall affect appellant's right, if any, to enforce the collection of its debt by any lawful procedure. *644