Gaffney v. Kent
| Decision Date | 10 August 1934 |
| Docket Number | No. 12034.,12034. |
| Citation | 74 S.W.2d 176 |
| Parties | GAFFNEY v. KENT, District Judge, et al. |
| Court | Texas Court of Appeals |
Petition denied.
Carter & Stiernberg, of Harlingen, for petitioner.
Paul H. Brown, of Harlingen, and Davenport & Ransome, of Brownsville, for respondents.
The petition of Ellena G. Gaffney, naming as respondents Honorable A. M. Kent, judge of the district court of Cameron county, and H. W. Bush and wife, Bonnie V. Bush, invokes the original jurisdiction of this court and seeks a writ of mandamus requiring the district judge to set aside an order postponing the issuance of an order of sale under the decree rendered in cause No. 12308, Ellena G. Gaffney v. H. W. Bush et al., and a writ of prohibition restraining the district judge from making any order postponing the immediate enforcement of that decree in the absence of a supersedeas bond.
The controlling question is whether a decree establishing a constructive trust and fixing an equitable lien upon property is, with respect to its enforcement, governed by statutory provisions as to executions upon judgments or may be controlled by the chancellor's order in accordance with a proper adjustment of the equities between the parties.
The decree was to the effect: That the conveyances to Ellena G. Gaffney of 100 acres of land be rescinded, and the title thereto be vested in H. W. Bush and Bonnie V. Bush, and the obligations imposed upon Ellena G. Gaffney by the terms of the conveyances be canceled; that Ellena G. Gaffney recover judgment against H. W. Bush and Bonnie V. Bush for the sum of $25,821.55, the amount found to have been paid (including interest and deducting credits) in connection with the purchase of the 100 acres; that the purchase was made and the money paid by reason of fraudulent representations by H. W. Bush and Bonnie V. Bush; that $20,000 of that amount was used by H. W. Bush and Bonnie V. Bush in paying part of the purchase price of and in making improvements upon other land described as lot 16, survey 137, and lots 24, 25, and 26, survey 297, Cameron county, Tex.; that a constructive trust be established and a charge or lien be impressed as to the property last described to secure Ellena G. Gaffney in the payment of the sum of $20,000; that the charge or lien be foreclosed; and that an order of sale issue to the sheriff or any constable of the county, directing him to seize and sell the particularly described property as under execution to satisfy the sum of $20,000 adjudged; that, if the proceeds of such sale should be more than sufficient to pay the sum of $20,000, the excess should be paid to H. W. Bush and Bonnie V. Bush, or into the registry of the court for their benefit, free and clear of any claim or lien thereon in favor of Ellena G. Gaffney by virtue of the judgment; that execution issue for the sum of $5,821.55; and that any and all writs necessary for the enforcement of the judgment, also, issue.
After the entry of the decree and within the same term of court, the district court, on motion of the defendants, made the following order: "It is, therefore, ordered that the order of sale provided for in the judgment entered herein on April 2, 1934, be stayed until February 1, 1935, or until this case be finally decided on appeal, in the event the final judgment of the appellate courts precedes February 1, 1935, unless this decree be modified by further order of this court; and that any other process provided for the enforcement of this judgment heretofore entered in this cause on April 2, 1934, be unaffected by this order of the court herein."
Subsequently, H. W. Bush and Bonnie V. Bush perfected an appeal by filing a cost bond as provided by statute; and Ellena G. Gaffney, also, perfected an appeal in like manner. No supersedeas bond, as permitted by statute, has been filed.
The district clerk has refused to issue an order of sale under the original decree.
The petitioner contends that, in the absence of a proper supersedeas bond, the district court had no power to make the order postponing the sale, and the district clerk had no right to refuse to issue an order of sale.
A court retains control over its judgment during the term at which it is rendered, and may then in its discretion modify or vacate its judgment to any extent not contrary to prescribed procedure. The subsequent order will therefore be considered as a proper modification of the original decree, unless fixing the manner and time of enforcement of the decree was beyond the power of the court.
A court of equity has the inherent power to direct the manner and time of enforcement of its decree establishing a constructive trust and impressing a charge or lien on property. The adjustment of the equities between the parties reaches to the enforcement of the rights decreed. The adjudication of those rights would possess less of the quality of justice without a mode of enforcement just to all parties. Therefore, it is that a court of equity will fully adapt the relief granted to the circumstances of the case.
These general principles have special application here. The decree rescinded a conveyance of 100 acres of land to the plaintiff on the ground of fraud, vested the title to that land in the defendants, awarded a money judgment for $20,000 in favor of the plaintiff against the defendants, declared a constructive trust, and impressed a charge or lien to the extent of $20,000 upon other land of the defendants paid for in part with the amount obtained from the plaintiff on the sale to her of the 100 acres of land, directed a sale of the land subject to the trust for the satisfaction of the $20,000, commanded the payment to the defendants of the excess of the proceeds of sale free from any other claim of the plaintiff, and gave a further money judgment for $5,821.55 in favor of the plaintiff against the defendants to be collected by ordinary execution. The supplemental decree postponed the sale of the land until February 1, 1935, unless the case should be decided on appeal prior to that date. Both the plaintiff and the defendants have appealed. The land subjected to the trust has a citrus orchard on it, and is the homestead of the defendants. In this situation, the trial court did not err in allowing a reasonable time for the protection of the rights and equities of the defendants in the homestead tract. The plaintiff still had as ample protection as the court could give, in that she could retain, pending appeal, the 100 acres, and would also have a charge or lien upon the tract of the defendants. It was recognized that the money obtained from the plaintiff constituted only a part of the amount paid by the defendants for their tract of land and the improvements; and apparently it was the homestead feature that caused the exemption of the proceeds of sale above $20,000 to be granted. Thus there was reason and justice in the preservation, for the time being, of the equities defined by the decree.
The authorities furnish many illustrations of the principles here approved and...
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