White v. Sparks, 12690.

• Decision Date: 21 May 1938
• Docket Number: No. 12690.,12690.
• Citation: 118 S.W.2d 649
• Parties: WHITE v. SPARKS.
• Court: Texas Court of Appeals

118 S.W.2d 649

WHITE v. SPARKS.

No. 12690.

Court of Civil Appeals of Texas. Dallas.

May 21, 1938.

Rehearing Denied June 25, 1938.

Appeal from District Court, Dallas County; Paine L. Bush, Judge.

Suit in trespass by B. F. White against Anita Sparks to try title to realty. As ancillary to the suit to try title, the plaintiff sought a mandatory injunction. From a judgment denying the mandatory injunction after hearing, the plaintiff appeals.

Reversed and rendered, with instructions.

J. L. Turner, of Dallas, for appellant.

W. H. Reid, of Dallas, for appellee.

YOUNG, Justice.

This is an appeal from a judgment of the trial court denying to plaintiff a mandatory injunction after hearing, such allegations and prayer for the relief sought being ancillary to a statutory suit in trespass to try title; plaintiff and defendant being negroes.

As grounds for his suit and mandatory plea, plaintiff alleged the real estate and premises in question had been, prior to the death of his wife, Lela G. White, on September 8, 1937, their community homestead, having been owned and occupied by them for many years. There were no children born to the marriage, but the allegations were that, after his wife's death, plaintiff continued to live in the home, or was attempting to do so, when defendant, a sister, who had been attending the deceased during her last illness, filed in the probate court, the day after the funeral, application for temporary administration, was appointed temporary administratrix, and took charge of said homestead, without notice to plaintiff. Defendant, in a later hearing, was removed as temporary administratrix and ordered to turn the premises, together with all rents and revenues, over to plaintiff, which order recited that Hoyet Armstrong was appointed to succeed said defendant, as administrator of the estate of Lela G. White, deceased, "except as to the aforesaid homestead of deceased and said B. F. White and the rents and revenues therefrom, and as to those, she at once turn the same over to said B. F. White". A further recital of this decree was, "that said homestead is the community estate of deceased and said B. F. White, and that there are no debts due thereon, and by reason of these facts the same is not subject to administration, and this court has no jurisdiction thereof". Defendant excepted to the above probate order, gave notice of appeal to the 95th District Court, with bond fixed on appeal, and has continued to ignore such order by remaining in possession of the homestead property.

In connection with the above suit in trespass to try title, plaintiff recovered the property by sequestration proceedings, but defendant promptly regained possession by filing a replevy bond. Previous to the injunction hearing, plaintiff had been allowed to occupy a downstairs back room, the balance of the home being in possession of defendant, who has been renting same in greater part, collecting rentals, and otherwise exercising every indicia of possession. Defendant's claim of right to possess the property is, in effect, that under the will of deceased, Lela G. White, not yet probated, an interest in the homestead had been bequeathed to the father, Ed Wofford, who thereby became a joint tenant with plaintiff, and defendant was holding, under an agreement with said Wofford, as his representative; also, that plaintiff, having pursued his legal remedy in sequestration, is precluded from injunctive relief.

Plaintiff's application for mandatory injunction followed the above sequestration proceedings. Upon hearing of plaintiff's demand for immediate possession of the whole of the premises, defendant was ordered to desist "from interfering with plaintiff's possession, use and enjoyment of that portion of the house now occupied by him", upon bond of $100, which was furnished by plaintiff. Exception and appeal was taken, however, from the denial by the court of the relief for which plaintiff had theretofore prayed. Defendant further urges as a counter proposition, that "Where a party seeks injunction, and the court grants same in part and he accepts the judgment of the court and makes his bond in accordance therewith, he cannot be heard to complain of that judgment which he has thus accepted and agreed to". Disposing of the defendant's proposition of law just quoted, we think the effect of the judgment of the trial court was a tacit denial in toto of the relief plaintiff sought in the hearing. Plaintiff gained nothing on his hearing for injunction over the privilege he had already been accorded—a permissive use by defendant of one room in the home—conditioned upon his filing the aforesaid injunction bond. There was, therefore, no election to accept under the court's order, which in any wise precluded an appeal.

This being a preview of matters preliminary to a trial of the main case, we...