J. D. Blair & Co. v. Thorp

Citations

• 33 Tex. 38

Syllabus

<p>• 1. The right of a surviving wife to the homestead is a preferred right, if the property be not incumbered with the purchase money.</p> <p>2. The rulings in Robertson v. Paul, 16th Texas Reports, 472, quoted and approved, to the effect that a-power to sell, contained in a mortgage or deed of trust, cannot be executed after the death of the constituent; that debts preferred by our statute (Paschal’s Dig., Art. 134J) have priority over specific liens, unless the latter be for purchase money ; and that payment of the purchase money is the essential constituent of title to real estate.</p> <p>3. A widow, in apparent ignorance of her right to the homestead, which had been mortgaged in her husband’s lifetime, was allowed in lieu of it by the probate court, an unincumbered tract of 640 acres. Held, that the action of the court was erroneous : The widow, notwithstanding the mortgage, was entitled to the homestead of two hundred acres, and no more ; and she could not be allowed, in lieu of the homestead, to take a greater quantity of other land, which pertained to the assets of the estate for the payment of debts, ' The mortgagee of the homestead stood in no better attitude than the general creditors of the estate.</p>