Travelers' Ins. Co. v. Marshall

• Citation: 74 S.W.2d 658
• Decision Date: 15 September 1934
• Docket Number: No. 11876.,11876.
• Parties: TRAVELERS' INS. CO. et al. v. MARSHALL et ux.
• Court: Court of Appeals of Texas

74 S.W.2d 658

TRAVELERS' INS. CO. et al. v. MARSHALL et ux.

No. 11876.

Court of Civil Appeals of Texas. Dallas.

September 15, 1934.

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

Suit by Schuyler B. Marshall, Sr., and wife against the Travelers' Insurance Company wherein the Republic Trust & Savings Bank intervened as party defendant. From an adverse judgment, defendants appeal.

Affirmed.

Renfro & McCombs and James A. Kilgore, all of Dallas, for appellants.

John Davis, of Dallas, for appellees.

JONES, Chief Justice.

This is an appeal from a temporary writ of injunction, granted under the 1934 Moratorium Law (Acts 1934 [2d Called Sess.] c. 16 [Vernon's Ann. Civ. St. art. 2218b note]), restraining the sale of real estate to satisfy a deed of trust lien, in a suit instituted to obtain such relief, by appellees, Schuyler B. Marshall, Sr., and wife, the lien debtors, against Leslie Waggener, trustee in the deed of trust, which was executed in 1926 by Schuyler B. Marshall, Sr., and his wife, to secure a loan to appellees, originally in the sum of $125,000, made by the Travelers' Insurance Company, which company is made a party defendant to this suit, and the Republic Trust & Savings Bank became a party defendant by intervention.

Appellees' verified petition is sufficient under the provisions of chapter 16, p. 42, of the Acts of the Second Called Session of the Forty-Third Legislature, known as the 1934 Moratorium Law (Vernon's Ann. Civ. St. art. 2218b note), to secure the relief of the temporary writ of injunction, under the provisions of said law, restraining the threatened sale of the land by the trustee, under the terms of the deed of trust, and sufficient to authorize the trial court to grant ex parte the temporary restraining order, and also is a sufficient basis for the hearing of evidence to sustain the allegations, at a later hearing of which appellants had received due notice, and had answered appellees' claim to the right for such relief; and, further, that the evidence offered by appellees at this hearing was sufficient, under the terms of said law, to authorize the injunctive relief, provided said law is a valid legislative enactment.

The court fixed the rental value of the land involved to be $2.50 per acre, from the date of hearing to February 1, 1935, the date on which the temporary writ of injunction expires, by its own terms, and also the date on which the law terminates. It was ordered that the amount of the rental value of the land be paid into court before September 1, 1934, and that, unless such payment is made, "this injunction will be dissolved and of no further force and effect after said date of September 1, 1934."

No question is raised that, at the time the trustee posted the notices of the sale of appellees' land, the right existed to declare all of the indebtedness due and at once payable, amounting to $146,012.74, including attorney's fees, interest, and taxes, as well as the balance due on the principal, and that, but for the terms of said law and of appellees' invoking the rights given thereunder, no legal right existed in appellees to prevent the sale of the land. The sole question at issue on this appeal, therefore, is the validity of the 1934 Moratorium Law. The 1934 Moratorium Law does not differ materially from the 1933 Moratorium Law (Acts 1933, c. 102 [Vernon's Ann. Civ. St. art. 2218b]), and it is admitted by appellants that, in so far as this case is concerned, there is no substantial difference in the two enactments.

After a rather lengthy preamble, declaring the existence of facts, which show that the great financial distress that existed at the time of the enactment of the 1933 Moratorium Law also existed at the time of the enactment of this law, as a purely temporary measure, for the immediate relief of a distressed citizenship from economic causes.

Section 1 of the law under consideration (Vernon's Ann. Civ. St. art. 2218b note), among other things, authorizes district courts to grant writs of injunction, "restraining the sale of real property under powers created by Deeds of Trust or other contracts and to restrain sales under executions and orders of sale issued out of any Court in this State, when it shall be made to appear by verified motion or petition or from evidence adduced upon a trial on the merits or on ex parte or preliminary hearing," that certain enumerated facts must exist, and that certain other enumerated facts must not exist, in order for a lien debtor to obtain the injunctive relief. The petition alleges all the affirmative facts enumerated in section 1, and denies the existence of any of the negative facts so enumerated.

Section 3 (Vernon's Ann. Civ. St. art. 2218b note) provides, in part, that: "The Court shall determine the reasonable rental value of said property and shall direct and require such mortgagor or debtor to pay all or a reasonable part of such income or rental value into or toward the payment of the indebtedness owing and the court shall further direct and require such payments to be made at such times and in such manner as shall be fixed and determined by the order of the Court as under the circumstances may be deemed equitable and just, and that the Court shall direct that such rental payment be applied to the payment of taxes, insurance, interest, and to the mortgage indebtedness in the order named."

Section 7 of the act (Vernon's Ann. Civ. St. art. 2218b note) reads: "The motion for continuance or for stay of execution or the petition for injunction shall be addressed to the sound discretion of the Trial Court and the action of the Court in refusing to grant any such relief as herein authorized shall not be...