Mann v. Wallis
| Decision Date | 14 January 1890 |
| Citation | 12 S.W. 1123 |
| Court | Texas Supreme Court |
| Parties | MANN <I>v.</I> WALLIS <I>et al.</I> |
Appeal from district court, Washington county; C. C. GARRETT, Judge.
Action by M. W. Mann against Wallis, Landes & Co., as execution creditors; Hunt & Co., composed of P. W. Hunt and M. V. Hunt, execution debtors; and Dever, sheriff, — to restrain the sale under execution of certain real estate purchased by plaintiff from P. W. Hunt, and to clear the title thereto. Plaintiff appeals from a judgment dissolving the injunction and dismissing the action.
Bassett, Muse & Muse, for appellant. Davidson & Minor, for appellees.
The nature and result of this suit, as well as the substance of appellant's petition, are thus correctly stated in brief of counsel: The appellant, M. W. Mann, who was plaintiff in the court below, brought this suit to enjoin the sale, under an execution in favor of Wallis, Landes & Co., against Hunt & Co., of 86 1-5 acres of land claimed by the plaintiff, and to clear his title thereto. Wallis, Landes & Co., plaintiffs in the execution; Hunt & Co., composed of P. W. Hunt and M. V. Hunt, defendants therein; and Dever, the sheriff, who was in possession of the writ, and had levied on the premises under it, and was about to sell them, — were joined as defendants. By an order of the judge, made in chambers, the sale was temporarily enjoined; but afterwards, on motion of the defendants Wallis, Landes & Co., the court dissolved the injunction and dismissed the bill.
The grounds of the motion were (1) that the allegations of the petition were insufficient; (2) that it did not appear from the petition that the plaintiff had not a complete remedy at law; (3) that it did not appear that plaintiff was not a volunteer and interloper; (4) that it did not appear that the plaintiff was entitled to any relief in equity; and (5) that it did not appear that the plaintiff had purchased the land before the lien of the defendants Wallis, Landes & Co. became fixed thereon.
The petition alleged that on and prior to the 11th day of November, 1888, and down to and including the 11th of March, 1889, the defendant P. W. Hunt owned and occupied the premises in the controversy, consisting of 86 1-5 acres of land, which were part of the rural homestead of said Hunt and his family, — he (the said Hunt) being a citizen of Texas, and a married man, and the head of a family; that said Hunt and his family were residing on the premises, and occupying, using, and enjoying the same as part of their homestead; that afterwards, on said 11th of March, 1889, said Hunt, joined by his wife, by their deed of that date, conveyed said premises in fee to the plaintiff, whereby the plaintiff became and was the owner thereof, of all which the defendants had due notice; that afterwards, on the 10th of April, 1889, the defendant Dever, sheriff, etc., having in his possession a writ of fi. fa. issued out of the county court of Galveston county on a judgment of that court rendered on the ____ day of February, 1889, in favor of Wallis, Landes & Co., and against Hunt & Co., for the sum of $267.06, with interest and costs, by virtue of said writ levied on the premises, and advertised them for sale on the first Tuesday in May, 1889, and had threatened to sell, and would so sell, unless restrained, etc.; that the premises, being the homestead of the family of said Hunt prior to his said sale to plaintiff, and being thereafter the property of plaintiff, were not subject to sale under said writ, but that the sale, if made, would cast a cloud upon the plaintiff's title, which would interfere with the sale thereof, and depreciate its market value, and the rental value thereof, to the plaintiff's great and irreparable injury; that, should it appear upon the trial of the case that the premises were not protected from forced sale as part of the homestead of the family of said Hunt, the plaintiff is still the owner thereof, subject to such rights as the defendants Wallis, Landes & Co. may have under their said judgment and execution; that the premises were reasonably worth the sum of $1,500, being about $1,200 in excess of said defendants' claim, and it is to the interest of all the parties, both plai...
To continue reading
Request your trial
-
Guaranty State Bank & Trust Co. v. Thompson
...was not held that the threatened sale would not cast a cloud on the title. Carlin v. Hudson, 12 Tex. 203, 62 Am. Dec. 521; Mann v. Wallis, 75 Tex. 611, 12 S. W. 1124. But it was further held that, where the evidence that would defeat the apparent claim being sold through the execution sale ......
-
Jayton I. School Dist. v. Rule-Jayton Cotton Oil Co.
...title when the evidence on which the right depends is not of record or shown in the papers on which the right depends." Mann v. Wallis, 75 Tex. 611, 12 S. W. 1124; Texas Land & Mortgage Co. v. Worsham, supra; Day Land & Cattle Co. v. State, 68 Tex. 526, 4 S. W. 869. That such facts as are a......
-
Chamberlain v. Baker
...v. Davis, 66 Tex. 456, 1 S. W. 343; Spencer v. Rosenthall, 58 Tex. 4; Kennard v. Mabry, 78 Tex. 158, 14 S. W. 272; Mann v. Wallis, 75 Tex. 613, 12 S. W. 1123; Heath v. Bank (Tex. Civ. App.) 32 S. W. 779; Paddock v. Jackson (Tex. Civ. App.) 41 S. W. 700; Cook v. Railway Co., 3 Tex. Civ. App.......
-
Davis v. Santa Rosa Infirmary
...adequate remedy at law, and that the tax, if illegal, could not have been properly enjoined in this suit." In the case of Mann v. Wallis, 75 Tex. 611, 12 S. W. 1123, a suit was not brought to prevent a suit being instituted, but to restrain an execution sale, and the court, even in that sor......