Richardson v. Kent

• Citation: 21 S.W.2d 72
• Decision Date: 03 October 1929
• Docket Number: (No. 881.)
• Parties: RICHARDSON v. KENT.
• Court: Court of Appeals of Texas

21 S.W.2d 72

RICHARDSON v. KENT.

(No. 881.)

Court of Civil Appeals of Texas. Waco.

October 3, 1929.

Rehearing Denied November 7, 1929.

Appeal from District Court, Navarro County; Hawkins Scarborough, Judge.

Suit by G. C. Kent against R. H. Logan and others to foreclose vendor's lien. From an order granting an injunction restraining defendant J. H. Richardson from prosecuting or trying suit in another county, defendant last named appeals. Reversed, and injunction dissolved.

Bishop & Holland, of Athens, for appellant.

W. A. Tarver, of Austin, and Lawrence Treadwell, of Corsicana, for appellee.

BARCUS, J.

This is an appeal from an injunction granted by the judge of the district court of Navarro county, restraining appellant and his attorneys from prosecuting or trying a suit which appellant had filed in the district court of Henderson county against appellee G. C. Kent and others. The injunction was granted in chambers on an ex parte hearing. No motion was made to dissolve said injunction as granted.

The facts as disclosed by the record show that in November, 1925, H. A. May conveyed to R. H. Logan 1,290 acres of land in Henderson county, and retained a vendor's lien to secure the payment of two notes, one for $8,000 and the other for $18,000. The $18,000 note was a prior and superior lien to the $8,000 note and was sold to the Federal Land Bank of Houston. The $8,000 note was sold to G. C. Kent. At the time the Federal Land Bank became the owner of the $18,000 note, R. H. Logan executed a deed of trust to said bank in addition to the vendor's lien which it had to secure the payment thereof.

On December 15, 1928, appellee G. C. Kent filed suit in the district court of Navarro county against R. H. Logan and Finis McCluney on his $8,000 note and to foreclose his vendor's lien on the 1,290 acres of land. He alleged that Finis McCluney had purchased the land from Logan and assumed the payment of the note. On January 8, 1929, judgment by default was rendered in favor of Kent against R. H. Logan and Finis McCluney for the amount sued for and a foreclosure of the vendor's lien. Neither the petition filed by G. C. Kent nor the judgment rendered made any mention of the prior lien against said land to secure the $18,000 note held by the Federal Land Bank. An order of sale was issued on said judgment and directed to the sheriff of Henderson county, who levied upon the 1,290 acres of land and advertised same for sale.

When the land was advertised for sale, appellant J. H. Richardson filed a suit in the district court of Henderson county to restrain G. C. Kent and the sheriff of Henderson county from selling the 1,290 acres of land. In said petition he alleged he was the owner of and in possession of said land and was not a party to the suit filed by G. C. Kent against Logan et al. in Navarro county, and that he held and owned said land unincumbered by any lien asserted by G. C. Kent. The prayer of appellant in the petition and application for injunction filed in the district court in Henderson county, which was granted, was as follows: "Wherefore, premises considered, plaintiff (Richardson) prays that the defendants (Kent et al.) be cited to appear and answer this petition; that this court issue temporary writ of injunction, restraining defendants from making sale of said land and premises, and that upon hearing hereof said injunction be made permanent; for all costs of suit, and for all other relief, both special and general, either in law or in equity, to which the plaintiff may in the judgment of the court be justly entitled to."

After the district court of Henderson county granted appellant said injunction, appellee G. C. Kent, on March 9th, 1929, had the default judgment which he had obtained in Navarro county on January 8th set aside. He then filed his amended petition in said suit, same being identical with his original petition with the exception that he alleged that appellant, whom he made party defendant, claimed some interest in the land on which he sought his foreclosure, which was adverse to his rights but which he alleged was inferior to those held by him. Appellant filed his plea of privilege in the Navarro county suit, and a controverting affidavit was filed; and subject to the plea of privilege, appellant, in the suit in Navarro county, filed his plea in abatement alleging in effect that the district court in Navarro county had no jurisdiction because the district court of Henderson county had already obtained jurisdiction to try the issues as between himself and appellee Kent; and further, because it was an effort on the part of appellee Kent to remove cloud from title and to combine in one suit a foreclosure of a vendor's lien and a suit in trespass to try title or a suit to remove cloud from title. He alleged he owned the land, having purchased same at a foreclosure sale under the deed of trust that had been given to the Federal Land Bank to secure the prior and superior lien of $18,000. In response thereto appellee Kent filed his first supplemental petition in the case in Navarro county, in which he joined issue with the matters contained in the answer and plea in abatement of appellant, and made an additional party, to wit, J. P. Pickens, who he alleged was the trustee who sold the property to Richardson under the deed of trust that had been given to the Federal Land Bank. Thereafter appellant filed an amended petition in the suit he had brought in Henderson county against G. C. Kent and the sheriff of Henderson county to restrain the sale of the land in controversy, for the purpose of removing the cloud from title by reason of the claimed lien of appellee Kent, and said cause was ready for trial on the 19th day of August, 1929, in Henderson county.

On August 17, 1929, appellee Kent, in the district court of Navarro county, filed his application for an injunction to restrain appellant from further prosecuting the suit he had filed in Henderson county. Appellee's application for injunction stated, in substance, all of the facts and history of the litigation as hereinabove set forth. Paragraph 7 of said application for injunction states:

"That by reason of the diversity of the parties in the two suits (his suit in Navarro County and appellant Richardson's suit in Henderson County) and the diverse interests of the several parties to the two several suits, neither suit can be abated; that plaintiff has filed no pleadings in the case in Henderson County; that plaintiff is cited to appear and answer in the Henderson County district court on Monday, August 19th, 1929, and if forced to answer there large additional expense in the litigation over said lien will have to be paid by him in the sum of about $1,000.00; that should said suit be prosecuted to trial, in all probability a different judgment will be entered there from the judgment which will be entered in this court; that because of the different parties to the two suits, the same judgment could not be entered in each case; that such conflicting judgments would and of necessity must cloud the title and rights of possession to said 1290 acres of land * * * that there is now no occasion or reason for further prosecuting the suit in Henderson County, and to allow same to be further prosecuted there would result in a multiplicity of suits, to the injury and damage of this plaintiff, as alleged above, and that unless such injunction be issued, plaintiff will be irreparably damaged, and his only remedy in the premises is the most equitable remedy of injunction."

Appellee then prays for an injunction, restraining appellant, his agents and attorneys, from the further prosecution of the cause in Henderson county, and from taking any orders in said suit until the further orders of the court in Navarro county. The district judge of Navarro county, in chambers, on the 17th of ...