Carlin v. Another

• Decision Date: 01 January 1854
• Citation: 12 Tex. 202
• Parties: CARLIN v. HUDSON AND ANOTHER.
• Court: Texas Supreme Court

12 Tex. 202

CARLIN

v.HUDSON AND ANOTHER.

Supreme Court of Texas.

1854.

An injunction will not be issued to restrain the sale upon execution of real estate which the judgment debtor has sold to a third person who makes the application.

Where a stranger to the record claims land levied on by execution, and obtains an injunction, and the injunction is dissolved, it is error to render judgment against the plaintiff in the injunction suit and his sureties for the amount of the original judgment. (Note 47.)

The statute authorizing the Court to award damages for the delay, on the dissolution of an injunction, (Hart. Dig., Art. 1602,) has reference to injunctions to restrain the collection of money obtained by the judgment debtor or some one who is a party to the judgment.

The defendant in an injunction suit may either plead the damages sustained by reason of the injunction in reconvention, or he may have an action on the bond for the injury thus occasioned.

Appeal from Harrison. The appellant filed his petition in the District Court, alleging that, on the 11th day of February, 1852, he purchased of one Ford and his wife a certain tract of land, and gave his note, payable three years thereafter, for the purchase money; that on the 12th of March thereafter he had his title deeds duly recorded, and that on the 15th of the same month the appellees caused an execution, issued on a judgment obtained by them against Ford, to be levied on the land, and that great injury will be done him in case of the sale of his land by virtue of the execution so levied upon it; and he prays an injunction. An injunction was accordingly awarded. The defendants in the injunction demurred to the petition, answered that the alleged purchase was fraudulent and void as to them, and moved that the injunction be dissolved and the petition dismissed. The motion was sustained and judgment rendered against the plaintiff in the injunction and his sureties for the amount of the original judgment against Ford, which is assigned as error.

Clough & Lane, for appellant. I. If Carlin was at all liable to the appellees, it was only ten per cent. of the amount.

II The case should not have been dismissed on the merits. The title of Carin to his land has been put in jeopardy. A cloud has been cast on it. Every man is entitled to be relieved from the act of another who is proceeding without right to disturb the title of his property.

If the injunction had been dissolved, still the petition should have been retained and the facts tried.

C. M. Adams, for appellees.

WHEELER, J.

The cases in which injunctions are granted to restrain the alienation of property, are those where it is indispensable to secure the enjoyment of specific property; or to preserve the title to such property; or to prevent frauds, or gross and irremediable injustice in respect to such property. (2 Story Eq., chap. 23.) The present manifestly does not come within that description of cases. The proposed sale of the land, as the property of Ford, could not operate to dispossess the plaintiff, or...