16 Tex. 472 | Tex. | 1856
The validity of the plaintiff’s demand, and his right to recover in this action, must depend upon the authority of the trustee to sell under the power, after the death of the debtor. The instrument, called a deed of trust, was but a mortgage, containing a power to sell. The practice of inserting such a power in mortgages, had its origin in England, in consequence of the inconveniences attending the existing practice of foreclosure in that country. And though its propriety was at one time questioned, as being an extraordinary and dangerous power, (1 Madd. Ch. R. 160,) it is now firmly established. (2 Story, Eq. Sec. 1027.) It is usual to add to the mortgage a power oí sale in case of default. (4 Kent, Com. 146.) The power may be given to the mortgagee, or it may be placed in a third person, as trustee for both parties, as in this instance. “ These powers fall under the class of “ powers appendant or annexed to the estate, and they are “ powers coupled with an interest, and are irrevocable, and “ are deemed part of the mortgage security, and vest in any “ person, who, by assignment or otherwise, becomes entitled to “ the money secured to be paid.” (3 Kent. Com. 147, and notes, 2 Story Eq. Sec. 1027, and note.)
On general principles, it is clear, the death of the mortgagor would not operate a revocation of the power. Whether the statute governing the settlement of the estates of decedents, will cause it to have that effect, is the question to be determined. And we are of opinion that it will.
This, we think, is unquestionable, as respects the case of mortgages, in general, though they contain a power to sell, in default of payment. In the present case, however, the mortgage was given to secure the purchase money for the property mortgaged. The price remaining wholly unpaid, the vendor has the better right, hr superior title to the land. (Dunlap v. Wright, 11 Tex. R. 597; Howard v. Davis, 6 Id. 174.) In this case, therefore, the property was first subject to the payment of the purchase money secured by the mortgage ; and until that be satisfied, it will not be subject to any other claim, upon the estate, though having a preference over debts generally secured by mortgage. To vest an indefeasible title in the estate, which will render the property subject to the payment of other claims upon it, the purchase money must be paid. But although the property is not subject to the payment of the other debts of the estate until after payment of the purchase money ; still there is the same necessity for its presentation for allowance and approval, duly authenticated, as in the case of other mortgages.
We therefore conclude that the sale was unauthorized, and that the plaintiff, claiming to hold the property exempt from administration, was not entitled to have his claim, or any part -of it, allowed and approved. Not having presented it in a manner which entitled him to its allowance, the administratrix ,was in no fault in refusing to allow it; and her refusal gave him no right of action for its establishment. And as the plaintiff was not entitled to sue, upon the refusal to allow his claim, on the presentation of it, as averred in his petition, it
The answer, indeed, though it contests the plaintiff's right on the ground of the illegality of the sale, and the wrongful acts of the defendant in that regard, does not deny that the purchase money for the lot remains unpaid ; but tacitly admits it. Its averments, taken in connexion with the fact that the debt remains unpaid, contain matter sufficient to enable this Court finally to determine the rights of the parties ; and suggest the propriety of doing so, without sending the plaintiff out of Court to present his claim anew. The merits of the case are fully before the Court by the averments of the parties; and it manifestly appears thereby, that the plaintiff’s demand ought to be admitted and allowed as a valid, subsisting claim against the estate ; and as the estate cannot acquire an indefeasible title to the property, until it shall have been allowed and paid, it is manifest the defendant cannot rightfully, or without prejudice to the estate, disallow it, and the presentation of the claim anew, would be but a useless formality. And as the judgment may be here rendered, which will fully attain the right and justice of the case, this Court will render the judgment which the Court below might have rendered : that is, that the sale, under the power, be set aside and held for naught; the plaintiff’s claim and mortgage be adjudged valid and subsisting ; and be certified to the Probate Court for settlement as the law provides ; and that the plaintiff pay all the costs of this suit incurred, both in the District Court and in this Court.
Reversed and reformed..