Newton v. Patrick

• Decision Date: 01 January 1862
• Citation: 26 Tex. 326
• Parties: HEWITT & NEWTON v. R. PATRICK.
• Court: Texas Supreme Court

26 Tex. 326

HEWITT & NEWTON

v.R. PATRICK.

Supreme Court of Texas.

1862.

It seems that a partner, notwithstanding an injunction at the suit of his copartner restraining him from disposing of the partnership assets, can prefer one or more of the creditors of the partnership, who are not parties to the injunction suit nor interested in it; provided, that in so doing he does not interfere with the rights of the partner by whom he has been enjoined.

A., the managing partner of a firm in liquidation, was enjoined by B., his copartner, from disposing of the firm property or assets. Pending the injunction, A, in satisfaction of a debt of the firm, made to C., the creditor, a bond for the conveyance of title to land belonging to the firm, as soon as the injunction against him should be dissolved. Afterwards, D., another creditor, obtained judgment against the firm of A. and B., and under execution therefrom, the land contracted by A. to C. was sold. Held, that a party deriving title under the execution sale could not invalidate the title of C. on the ground that it was conveyed to him in violation of the injunction in the suit between A. and B.

The reason and object of the rule requiring a strict observance of an injunction is for the protection of parties and privies to the suit; and a stranger to the suit cannot complain that a contract was made in violation of the injunction, when he was not affected thereby at the time the contract was made.

APPEAL from Bexar. Tried below before the Hon. Thomas J. Devine.

This was an action of trespass to try title to 1,400 acres of land in Bexar county, originally instituted by the appellants against D. C. Davenport as defendant. The appellee, Patrick, intervened as lessor of the defendant Davenport, and asserted title in himself to the land in controversy. The other facts are sufficiently stated in the opinion of the court.

There was verdict below for Patrick, the intervenor, and judgment in his favor for the land in controversy.

Hewitt & Newton, for appellants.

W. B. Leigh, for appellee.

MOORE, J.

The land in controversy was purchased by Lockwood and Stumburg in 1850; but at that time Lockwood and Cook were partners, and although the title for one-half of it was taken in Lockwood's name, it seems to have been paid for with partnership funds, and to have been recognized by the parties as partnership property. On the 17th of November, 1851, the partnership between Cook and Lockwood was dissolved; and Cook, in consideration of Lockwood agreeing to discharge all of the partnership liabilities, and to pay to him the sum of twelve thousand dollars, conveyed to Lockwood all of his interest in the property and effects of the firm. But on the 28th of February, 1853, Cook brought suit against Lockwood for a settlement of the partnership accounts and partnership debts, and at the same time obtained an injunction restraining him from interfering with, or in any manner disposing of, any of the partnership property or assets. This suit was not finally disposed of in the district court until the 26th of March, 1858, when a...