Armstrong v. Moore

Opinion by

Delany, J.

The power of sale contained in the mortgage was a power coupled with an interest.

It has generally been considered that such powers cannot be revoked by the mortgagor during his life, and that they are irrevocable even by his death. (Hunt vs. Rousmanien 8 Wheat 174).

As the law in this case made the power of sale irrevocable, it could not be rendered more so, by inserting in the mortgage the provision that it should not be revoked by death. But notwithstanding this general rule of law, our courts have long since determined that the exercise of such powers, after the death of the constituent is inconsistent with the policy of our probate system. (Robertson vs. Paul 16 T., 472. McLane vs. Paschal 47 T., 365).

The covenant contained in the mortgage that the premises conveyed were not the homestead, would not bind the wife unlesss perhaps connected with representation^ by her, which were intended to deceive and which actually did deceive appellees. (Cravens vs. Booth 8 T., 243.) Married women are not estopped unless their conduct has been intentional and fraudulent. (50 T., 41).

In accordance with this view of the law, evidence was admitted upon the trial below, that the laud was the homestead of Armstrong and his wife at the date of the mortgage.

The only question to be determined by us is whether the sale made by appellees after the death of Armstrong, and while administration was pending, was valid.

Appellees seem to admit that, if the contract had been made prior to the probate law of 1870, the sale would have been void. But they insist that the reasons which led our courts to adopt this rule under the former laws (Robertson vs. Paul, Supra) are not applicable to the provisions of the latter statutes. There seems to have been a diversity of individual opinion among our judges, rather than a conflict of decisions upon the subject, (2 Pasch., 5487. Terry vs. Terry 39 T., 311. Woodall vs. Rudd 41 T., 374. Mayman vs. Reviere 47 T., 357).

It may however be regarded as settled that the sale under which appellees claim, vestedWio title in them as against the homestead rights of the surviving mfe. if the estate of the decedent were insolvent.

Black vs. Rockmore 50 T., 88.

That case arose under the probate law of 1870, and the sale by the trustee was declared inoperative, although the estate was not under the immediate control of the court, but was managed by the wife under the 33rd section of the act (Pasch. 5497). In the case before us the circumstances seem to indicate that the estate of Armstrong was insolvent, and we think that the judgment should be reversed; but as the question of insolvency was not brought to the attention of the court, but the decision proceeded upon other grounds, our opinion is that the cause should be remanded for another trial.

May 15 th, 1883.

Report of Commissioners of appeals examined their report adopted and the judgment reversed and cause remanded.

STAYTON, J.