J. D. Blair & Co. v. Thorp

33 Tex. 38 | Tex. | 1870

Walker, J.

In his lifetime John L. Thorp was indebted to Straus & Co., to the amount of about $10,000. To secure the payment of which sum, joined by his wife, he executed the ordinary deed of trust, with power of sale, to G. Baer. The debt, it seemed, was not due, nor did it mature in the lifetime of Thorp. After his death the wife, in probable ignorance of her rights, and supposing she could not hold the lands on which the trust deed had been given, applied to the county court for an allowance, in lieu of her homestead, to be made to herself and a • young minor child. The court made her an allowance of $2000. This was after-wards satisfied by her taking, at its appraised value, six hundred and forty acres of land belonging to her husband’s estate; and she appears to have thus abandoned her right to the original homestead. Hers was a preferred right, if unencumbered for the purchase money. In Robertson’s Administrator v. Paul, 16 Tex., 4T2, the court' say: “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.”

“ The funeral expenses, expenses of the last illness, 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 life time of decedent, except where such lien is for the purchase money. The principle is recognized that the payment of the purchase money is the essential constituent of title to real estate.”

We have thus transcribed the decision in this case, that it may again be placed before the profession, and it is hoped may prevenfj any further litigation of this long settled question.

The action of the county court was erroneous, and that of the district court not less so, and worked great injustice to the creditors. Straus & Co. stood on no better footing for the payment of - their debts than other creditors. ■ They took their mortgage lien-after the law had been well settled, and took the chances of being cut out by the contingency which has happened.

Mrs. Thorp is entitled to a homestead of two hundred acres, with the improvements appertaining, to be selected by her as a homestead, and no more. ’

The judgment of the district court is reversed, and cause remanded.

Reversed and remanded.