72 S.W. 375 | Tex. | 1903
On the 1st day of February, 1897, one F.H. Doran sold to one J.D. Pippin the tract of land, the half of which is in controversy in this suit. Pippin paid $625 in cash and executed to Doran five promissory notes of $100 each, maturing at different dates, as a consideration for the land. Doran's deed reserved a lien for the unpaid purchase money, and at the same time Pippin executed a deed of trust which empowered the trustee W.H. Lewis to sell the property for the payment of the notes in case of default.
On February 13, 1897, Pippin, for a recited consideration of $312.50 in cash and the assumption of the payment of one-half of the purchase money notes, conveyed to his wife Jennie E. Pippin an undivided one-half interest in the land. Mrs. Pippin did not pay the $312.50 as recited in the deed. She lived upon the land as her homestead until she died in April, 1900. She left surviving her two children by a former husband. At the time of her death her husband had disappeared, and whether he was living or dead was not known. The defendant R.H. Powell became administrator upon her estate and rented the premises in controversy to defendant Sallie May.
Doran transferred the notes to Mrs. E.E. Waller, and default having been made, the trustee, in pursuance of the power conferred by the deed *319 in trust, after the death of Mrs. Pippin and after administration upon her estate, sold the property, and Mrs. Waller became the purchaser at the sale. Subsequently she conveyed it to the plaintiff P.C. Whitmire.
Whitmire brought suit against Sallie May, the tenant in possession, to recover the property, and her landlord Powell as administrator of the estate of Mrs. Pippin appeared and defended the suit. The judgment was for the defendants, and on appeal it was affirmed by the Court of Civil Appeals.
The Court of Civil Appeals held that the case was ruled by the decision in Buchanan v. Monroe,
In following Buchanan v. Monroe another difficulty presents itself to our minds. The statute provides, that claims against an estate shall be sworn to and presented to the administrator in the first instance. Rev. Stats., art. 2072. Until this is done the creditor has no standing in the probate court. The form of the affidavit indicates in some measure that this was intended to apply to claims owed by the decedent. But when a mortgagor has sold the property subject to the lien and the vendee has not assumed the mortgage, the latter does not owe the debt. It is a mere incumbrance on a specific piece of property. But since it is held that the mortgagee must proceed in the probate court to enforce his lien, it must follow that he has the right to make oath to his claim — not as a claim against the entire estate — but as a claim against a specific part thereof, and to have it allowed and approved or otherwise established as provided by law.
But it is insisted, that, since the claim in this case was for the purchase money, for which a lien was expressly retained in the deed, the rule should not apply. But that argument is met by the leading case *320
of Robertson v. Paul,
The judgments of the District Court and that of the Court of Civil Appeals are affirmed.
Affirmed.