In this case, after the death of the maker of a mortgage with power of sale, and pending administration on bis estate, a sale was had under the power, and the purchaser at that sale asserts his title in this suit against the heirs of the deceased debtor.
Since the decision in Robertson’s Administratrix v. Paul, such sales have been held invalid. The reason upon which that line of decisions is founded, is not that the power is revoked by death, but that our statutes governing the settlement of estates postpone such claims to sundry others, including the allowance to be made to the widow and children in lieu of a homestead and other exempt property, and that a sale under the power would be inconsistent with these statutory preferences. " In this case, the land covered by the mortgage with power of sale was the homestead of the deceased at the time he executed the mortgage and at the time of his death, in 1872. The probate law then in force contained a provision that “ The property reserved from forced sale by the Constitution and laws of this State, or its value, if there be no such property, does not form any part of the estate of a deceased person when a constituent of the family survives.” (Paschal’s Dig., art. 5487.) It is argued, that as this homestead constituted no part of the estate, its sale could not interfere with the priorities allowed by the statute regulating the administration of estates. Hence it is claimed that the sale was valid.
In our opinion, this position .cannot be maintained without a departure from former decisions. Exempt property constituted no part of the estate for the payment of debts before the probate law of 1870. That law, in directing that exempt property shall constitute no part of the estate, was not designed to interfere with the established policy of our laws to allow no mere mortgage lien to be so enforced as to deprive the widow and children of the exempt property, or an allowance in lieu *293thereof. Under that statute, as under former and subsequent statutes, the Probate Court was authorized to make an allowance in lieu of a homestead and exempt property, and that allowance was to be paid in preference to claims secured by mortgage or lien. (Terry v. Terry, 39 Tex., 313; Mayman v. Reviere, 47 Tex., 357; McLane v. Paschal, 47 Tex., 370, and cases there cited.)
If one lien creditor could appropriate the homestead because of his power of sale, the property on which other creditors have a lien might be taken to supply to the family of the deceased their allowance in lieu of the lost homestead. The preferences given by the statute would be interfered with if there were no other property, and if there were no other assets than those incumbered with liens, gross inequality between lien creditors of the same class would often be the result.
The mortgage with power of sale was but an incident to the claim against the estate. That claim “ comes within the letter and policy of the law which requires the presentation of the claim, and which postpones its payment to other preferred claims.” (Robertson’s Administratrix v. Paul, 16 Tex., 476; Black v. Rockmore, 50 Tex., 88.) In the latter ease the rule in Robertson’s Administratrix v. Paul was enforced, although there was no administration, the estate being managed by the survivor of the community under the statute.
The judgment is affirmed.
Affirmed.
Moore, Chief Justice.As no notice has been taken of the fact in the report of the case of Black v. Rockmore, 50 Tex., 88, I avail myself of the present opportunity to say that I dissented from so much of the judgment in that case as holds that the power of sale given by the trust deed was revoked by the death of the grantor. And I add, that I only concur in the judgment in this case on the ground that the questions in it have been in effect ruled upon and deter*294mined in Black v. Rockmore, and other cases in which they were involved.
[Opinion delivered December 12, 1879.]