Although the contracts of the wife in restraint of her right to the homestead, made either in contemplation of marriage or after marriage, should be closely scrutinized, yet as the wife, in this case, is the only one who can complain, it is not believed that, under the circumstances, the court should interfere in her behalf, when, with a full *21knowledge of all the facts and after the disability of coverture is removed, she voluntarily elects to take the provision made for her in lieu of the homestead, and not the homestead itself.
At the time of the marriage settlement, both the husband, J. G. McNeel, Sr., and his intended wife, Laura V. McNeel, the appellee, were competent to contract in regard to the homestead; and as they composed the only constituents of the family then and at his death, others not interested in the homestead exemption should not be heard to complain.
We do not admit that the husband, being the sole constituent of the family, could not, as against himself, have incumbered the homestead by a mortgage without power of sale. If so, however, still, marriage being a valuable consideration, his note therefor was valid in law. The legal effect of his will made this note a charge upon his homestead after his death, and consequently after it had ceased to be his homestead.
Although this could not ordinarily have been done in favor of a third party to the prejudice of the wife, yet, in this case, she is the only party interested, and being the beneficiary under the will, she could elect either to accept its provisions, or retain the homestead privilege.
That she, in her petition, set out the facts of the case and prayed judgment for the note and interest, and a sale of the property charged by the will with its payment, to satisfy the same, or, in the alternative, for the homestead itself, should not prejudice her claim. She was entitled to the one or the other.
That the husband, even after marriage, could execute a valid promissory note to the wife, was expressly decided by this court in Hall v. Hall, 52 Tex., 294.
Here, however, the note was given by the husband before marriage, and for a valuable consideration, and would stand as any other indebtedness against him.
Whether the interest would be separate property of the wife or community property, might depend upon the intention of the parties. If intended to be the separate property of the *22wife, then, as between the parties, this would, under repeated decisions of this court, determine its character and make it such. (Higgins v. Johnson’s Heirs, 20 Tex., 389; Smith v. Boquet, 27 Tex., 573.)
We think it evident, however, that even had the consideration of the note been the separate property of the husband or community property, it was intended that both the principal and interest should become the separate property of Mrs. McNeel.
If the claim of Mrs. McNeel had been allowed and paid, then she evidently could not legally have retained also the possession of the homestead; and if retained under these circumstances, she should have been charged with the use and occupation.
Her claim, however, was rejected, and she was forced to institute this suit. As before stated, she was entitled to the money or to the homestead. Under the circumstances, she could not have been required to give up the possession of the homestead, as her rights to the same might thereby have been prejudiced. It seems that she did not retain the exclusive control, and benefit of it, and there is no evidence before us showing the value of the use and occupation, or that it was of any value. Her claim to have the note and interest paid by a sale of the homestead, if necessary, was superior to the interest therein of the other devisees, and they could not have lawfully deprived her of possession until such payment was made.
As thus presented by the record, we do not think that Mrs. McNeel should have been charged with the use and occupation, even had there been evidence of its value.
The minor children of Morgan L. McNeel were not necessary parties, and the court did not err in refusing to delay the case until they could be brought in. Under the will they were entitled to a specific legacy of certain pension warrants, and had no interest whatever in the homestead. Their rights in the estate were legally represented by the administrator.
There was, however, in our opinion, error in so much of the *23decree as ordered the sale of the homestead to be made under the order of the District Court by the sheriff, and not through the County Court by the administrator.
The true rule in such cases is thus stated by Chief Justice Hemphill in Cunningham v. Taylor, 20 Tex., 129: “ The better opinion seems to be, that the judgment of the District Court should merely establish the mortgage, remitting the creditor to the County Court for satisfaction of his claim. The policy of the statute is, on administration, to subject the whole of the estate to the supervision and control of the County Court for the payment of debts, the adjustment of the equities and preferences of creditors, and for the distribution of the property.”
This is the rule adopted in other cases. (Robertson v. Paul, 16 Tex., 476; Fortson v. Caldwell, 17 Tex., 629; Boggess v. Lilly, 18 Tex., 200; Heath v. Garrett, 46 Tex., 25; Cannon v. McDaniel, 46 Tex., 316.)
This is an error, however, which can be corrected without remanding the case. (Thorn v. The State, 10 Tex., 295; Heath v. Garrett, 46 Tex., 25.)
It is accordingly ordered that the judgment below, so far as it decrees the sale of the land by the sheriff) be reversed and so reformed that it be certified to the County Court of Brazoria for enforcement, and that the costs of this appeal be adjudged against appellee.
Reversed and reformed.
[Opinion delivered March 5, 1880.]