2006 TEXAS LAND TITLE INSTITUTE
5
through probate has been distributed to the heirs, and then only to the extent of the
liability encumbering the assets the heirs actually received from the estate. Low v.
Felton, 84 Tex. 378, 19 S.W. 693 (Tex. 1892).
B. F
ORECLOSURE
When a loan goes into default, the mortgagee typically forecloses using the power of sale
found in the deed of trust. However, if the mortgagor is deceased and the mortgagee
forecloses at any time within four years of the decedent’s death, the foreclosure may be
canceled, annulled and declared void if a dependent administration were opened within the
time allowed by law. In addition, the mortgagee may be liable for damages if the mortgagee
had notice, constructive or otherwise, of the decedent’s death before foreclosure. American
Sav. and Loan Ass’n of Houston v. Jones, 482 S.W. 2d 62 (Tex. Civ. App.—Houston [14th
District] 1972, writ ref’d n.r.e.).
Most courts cite Robertson v. Paul, 16 Tex. 472 (1856), for the proposition that: “The power
of sale is suspended by the death of the mortgagor.” In analyzing the relevant probate statute
that was in effect at the time of Robertson’s death, the court found that it gave a preference
to the payment of funeral expenses, expenses of the last illness and expenses of
administration over the debt secured by a mortgage. Therefore, the court concluded the
trustee’s deed had to be set aside so that the property could be sold to first pay the expenses
which had a preference over the mortgage debt, such as funeral expenses, expenses of
administration, and expenses of the last illness. The Texas Supreme Court later affirmed the
Robertson rule in Buchanan v. Monroe, 22 Tex. 537 (Tex. 1863).
Fifty years later, the Texas Supreme Court refused to overturn Robertson and Buchanan in
Whitmire v. May, 96 Tex. 317, 72 S.W. 375 (Tex. 1903). However, the Texas Supreme Court
said that if Whitmire had been a case of first impression in 1903, it would have held “... the
death of a purchaser neither revokes nor suspends the power, but the trustee may proceed to
sell in the same manner as if the death had not occurred.” In the court’s view, the reasoning
in Buchanan, and by implication Robertson, was wrong because it was unjust that the
mortgagee could not foreclose upon the death of the mortgagor if the loan was in default.
However, since Buchanan had never been overruled or questioned since 1863, the court
found the holding in Buchanan and Robertson had become an inflexible rule of property.
Therefore, on grounds of precedent, the court ruled that the power of sale given in a
mortgage was suspended as long as a probate administration was pending.
1. Foreclosure Four Years after Mortgagor’s Death
In the case of Rogers’ Heirs v. Watson, 81 Tex. 417 S.W. 29 (Tex. 1891), Jones sold
property to three men and obtained a note and a deed of trust from Smith, Robinson and
Rogers, as mortgagors. In 1880, Rogers died intestate. A probate proceeding was never
opened for his estate. In 1881, Jones, the seller and mortgagee of the property, died
testate and in his Will, Jones bequeathed the notes to the plaintiff, Watson. After Jones
died, the heirs of Rogers, as well as Smith and Robinson, abandoned the property and