Tiboldi v. Palms

We deem it proper to say that we refuse this application because it appears that the trustee's sale was made after the close of an administration upon the estate of the constituent of the power, in which administration the property incumbered by the trust deed had been set aside as a homestead, and no effort had been made therein to enforce the lien upon the property. The reasons for such holding are satisfactorily stated in the opinion of Mr. Justice Pleasants. The question, whether or not property so incumbered could be sold by the trustee after the close of an administration in which no action was taken by the probate court affecting the property, except to turn it over to the heirs as their inheritance, is not involved and no opinion is intimated upon it. Blinn v. McDonald, 92 Tex. 604. Nor is the further question involved as to the right of the holder of such a claim as that of plaintiff in error to reopen the administration in a proper case for the purpose of enforcing it. We agree with the Court of Civil Appeals that to give such a claim precedence over the homestead right adjudged by the probate court to the claimants thereof, such lien is required by the probate law to be enforced in the administration proceedings. Fossett v. McMahan,86 Tex. 652; Hensel v. International B. and L. Assn., 85 Tex. 215 [85 Tex. 215]; Abney v. Pope, 52 Tex. 292; Black v. Rockmore, 50 Tex. 88; Buchanan v. Wagnon, 62 Tex. 375. We think it is deducible from these authorities that, where there is an administration, the determination of such questions between the claimants of the homestead and those asserting liens on it belongs to the probate court, and after it has set aside the property as homestead it can not be sold under powers of sale such as that relied on by plaintiff in error, although the administration has been closed. The sale upheld in Rodgers v. Watson,81 Tex. 400, was made after the time had elapsed in which an administration could be opened and none had been had. The action of the trustee, therefore, did not come in conflict with that of the probate court.