Madison v. Martinez

• Court: Texas Court of Appeals
• Writing for the Court: Jones
• Citation: Madison v. Martinez, 42 S.W.2d 84 (Tex. App. 1931)
• Decision Date: 03 July 1931
• Docket Number: No. 11066.,11066.
• Parties: MADISON et al. v. MARTINEZ et al.

42 S.W.2d 84

MADISON et al. v. MARTINEZ et al.

No. 11066.

Court of Civil Appeals of Texas. Dallas.

July 3, 1931.

Rehearing Denied October 3, 1931.

Appeal from District Court, Dallas County; Claude M. McCollum, Judge.

Suit by Dillie Belle Madison and husband against P. P. Martinez and others. From an order dissolving a temporary restraining order and refusing to grant a temporary writ of injunction, plaintiffs appeal.

Affirmed.

Ross M. Scott, of Dallas, for appellants.

Smithdeal, Shook, Spence & Bowyer, of Dallas, for appellees.

JONES, C. J.

Appellant Mrs. D. B. Madison, joined pro forma by her husband, T. B. Madison, instituted a suit in a district court of Dallas county, Tex. to have a judgment of forcible detainer, entered in a Dallas county court at Law in favor of appellee, P. P. Martinez, and against appellant T. B. Madison, declared void and to restrain said Martinez and Hal Hood, sheriff of Dallas county, the other appellee from executing the writ of restitution issued on said judgment. A temporary restraining order was granted ex parte, and appellees were given notice to appear and show cause why a temporary writ of injunction should not issue. At such hearing the temporary restraining order was dissolved, the application for a temporary writ of injunction was refused, and appellants have duly perfected an appeal to this court. When the term "appellee" is used, it will refer to Martinez. The following are the necessary facts:

The temporary injunction prayed for was to prevent the ouster of appellants from the use and possession, as a homestead, of the property in dispute, which is lot 7 in block 12, Chestnut Hill, an addition to the city of Dallas, pending the suit. When the judgment dissolving the restraining order and denying the prayer for temporary injunction was rendered, appellants in open court requested the court to permit them to file a supersedeas bond, in a sum fixed by the court, and to continue in force the restraining order until an appeal from the order denying the temporary injunction could be determined. The request was denied, the appeal was duly perfected, and this court, on application of appellants, issued a restraining order against appellees prohibiting the enforcement of the writ of restitution until final judgment on this appeal.

Appellants' petition in the district court is couched only in general terms, and does not allege, except in general terms, that the judgment of forcible detainer in the county court at law is void. While such petition is subject in many respects to special exceptions, because of the general terms of its allegations, it is perhaps good as against a general demurrer.

The facts developed on the hearing in the district court are that H. G. Madison, a single man, was at one time the owner of the property in controversy; that on June 13, 1921, he executed a deed of trust lien on the land to Wendall Spence, trustee, for appellee, to secure a note indebtedness of $2,500, executed by H. G. Madison to appellee. This deed of trust contained a power of sale, authorizing the trustee, under named conditions, to sell the property, if H. G. Madison should default in the payment of the note according to its terms. This deed of trust was duly recorded December 15, 1921, in the office of the county clerk of Dallas county.

It appears that, prior to the execution of this deed of trust, H. G. Madison conveyed the property by warranty deed to appellant T. B. Madison for a recited cash consideration of $5,000. The date of this deed was June 15, 1920, but it was not filed for record until September 23, 1922, when it was properly recorded in the records of the county clerk's office of Dallas county. It thus appears, when the deed of trust was executed by H. G. Madison, he actually owned no interest in the land, though the record title was in him at said time. The pleadings do not raise any question as to such condition of the title to the land, unless the general allegation in appellants' petition to the effect that the deed of trust was void be construed as referring to such condition of the title.

By an instrument in writing, duly executed, J. W. Hill was appointed by appellee as substitute trustee in place of Wendall Spence, deceased. On November 7, 1927, the substitute trustee executed to appellee a trustee's deed for the land in question. The deed contained all of the necessary recitations to show that default had been made in payment of the note it secured; that due notice was given to appellant T. B. Madison, and the land duly sold to appellee, the highest bidder, after the due posting of legal notices as to the time and place of such sale.

On November 10, 1927, appellants duly executed to appellee a quitclaim deed "for and in consideration of $10.00 and other considerations to us in hand paid by P. P. Martinez, receipt of which is hereby acknowledged * * *" (the recitation of the consideration in the deed).

On August 1, 1928, appellee and appellants entered into a written lease and option contract, whereby appellants acknowledged appellee to be the owner of the land in controversy, and by means of which he leased the property to appellants for the period of time from August 1, 1928, to December 1, 1928, for a stipulated monthly rental. This contract also gave to appellants an option to purchase the property at the expiration of the lease for a stipulated consideration, consisting of various items, and gave to appellants a right of credit on the purchase price, the amount of rental paid by appellants during the existence of the lease. Appellants also were to be allowed certain other credits, not necessary to mention. This contract also stipulates that, if appellants should fail to exercise the option reserved, they would immediately surrender possession to appellee.

Appellants failed to exercise their option on the termination of the lease, and refused to surrender possession, whereupon appellee filed a forcible detainer suit in a justice court in Dallas county. The trial of such suit resulted in a judgment in favor of appellee, and, on appeal by appellants to a county court at law, judgment was again rendered in appellee's favor March 18, 1931. Appellee attempted to enforce this judgment by causing to be issued a writ of restitution, and placed same in the hands of Hal Hood, sheriff of Dallas county, for execution. Before such writ was executed, appellants filed this suit in a district court of Dallas county, and secured the issuance of the temporary restraining order, which was served on appellees before the writ of restitution was executed. After the entry of the order appealed from, appellants perfected an appeal, and, on their application, this court issued a temporary restraining order prohibiting the execution of the writ pending a decision on the appeal.

As appellees very earnestly challenged the right of this court to issue the restraining order, we deem it proper now to state the reasons for issuing the restraining order before passing to the consideration of this appeal on its merits. The right to appeal from an interlocutory order, granting or refusing to grant, dissolving or refusing to dissolve, a temporary writ of injunction, is given by article 4662, R. C. S. As to the effect of such an interlocutory order in reference to the rights of the parties pending the appeal, this statute contains this clause, "Such appeal shall not have the effect to suspend the order appealed from unless it shall be so ordered by the court or judge who enters the order." It was contended by appellees that this statute rests the suspension of the...