Canales v. Canales

190 S.W. 842, 1916 Tex. App. LEXIS 1230

• Court: Court of Appeals of Texas
• Decided: December 6, 1916
• Docket: No. 5842.
• Status: Published

Opinion

FLY, O. J.

This is a suit instituted by appellants to restrain the sale under execution of a certain tract of land alleged to be the homestead of appellants, and consequently exempt from sale under execution. There was a preliminary hearing of the cause, and this appeal is perfected from an interlocutory order of the court refusing a temporary injunction.

The evidence was 'conflicting as to whether the land in dispute was a homestead or had been abandoned by appellants, but the question was one of fact, and forms a reasonable ground for the belief that appellants will probably sustain great harm if this property is sold under execution, and that nothing but a short delay will be encountered by-appellees. We think, therefore, that the court should have granted the temporary writ of injunction and restrained a sale of the properly until tJie cause could be tried on its merits. Friedlander v. Ehrenworth, 58 Tex. 350; Daniels v. Daniels, 127 S. W. 569.

Even if the old rule of refusing an injunction,- when the applicant has an adequate legal remedy, were in force in Texas, the right to an injunction to restrain the sale of a homestead, under execution, would exist. The sale would cast a cloud upon the title to the property, and the owners would have the right to an injunction to prevent such cloud. Joyce on Injunctions, §§ 708, 709; Van Ratcliff v. Call, 72 Tex. 491, 10 S. W. 578; Mann v. Wallis, 75 Tex. 611, 12 S. W. 1123; Leachman v. Capps, 89 Tex. 690, 36 S. W. 250; Wylde v. Capps, 27 Tex. Civ. App. 112, 65 S. W. 648; Barr v. Simpson, 54 Tex. Civ. App. 105, 117 S. W. 1041.

Appellants have a case which should be determined, if they so desire, by a jury, on its merits, and they should not have a cloud placed on their title before a final trial, which they will be compelled to have removed.

The judgment of the trial court is reversed, and a temporary writ of injunction is granted, restraining the sale of the land described in the petition until the cause is finally disposed of on its merits.