On Motion for Injunction
OPINION
PER CURIAM.
This is an original proceeding in this Court for an injunction. Pendleton Green Associates, Texas Valley Leisure Estates, Inc., and Community Projects, Inc., rela-tors, with leave of this Court first obtained, filed an application in this Court on January 28, 1975, pursuant to Rule 383, Texas Rules of Civil Procedure, and Article 1823, Vernon’s Ann.Civ.St., to enjoin Anchor Savings Bank and W. H. O’Donnell, its Substitute Trustee, respondents, frpm selling certain properties under the powers conferred by a deed of trust pending the disposition by this Court of the merits of an appeal from the denial of a temporary injunction by the trial court.
The trial court granted a temporary restraining order on January 6, 1975, which prohibited defendants (respondents) from conducting the trustee’s sale on January 7, 1975. The application for temporary injunction was denied by the trial court by an order that was signed and rendered on January 23, 1975. Plaintiffs (relators) have appealed.
Relators seek injunctive relief in this Court on the ground that the same is necessary in order for this Court to protect its jurisdiction of their appeal from the aforesaid order of the trial court. Otherwise, according to their application, our jurisdiction would be unlawfully invaded by the destruction of the subject matter of the appeal before we have decided the issues raised in the appeal.
Relators, as plaintiffs, filed suit against respondents in the District Court of Cameron County, Texas, on January 6, 1975, wherein they alleged: 1) they were the owners of an apartment complex in Har-lingen, Texas, together with certain fixtures and personal property located on the premises and used in connection therewith; 2) Anchor Savings Bank is the owner of a note which is secured by a deed of trust covering said properties; 3) at some time prior to the filing of the petition, Anchor drew $210,000.00 pursuant to a certain letter of credit and applied the same on the principal amount of the note; 4) the $210,000.00, in fact, constitutes an advance payment of several of the next succeeding monthly payments and should be applied against all monthly payments of principal, interest, insurance and taxes as the same become due until said sum has been exhausted; 5) the note was not in default when suit was filed and has never been in default; and 6) W. H. O’Donnell, Substitute Trustee, posted notice of trustee’s sale for January 7, 1975, and stated in the notice that the note was in default. Relators, in addition to relief by way of temporary restraining order and temporary injunction, until a trial was had on the merits, sought a declaratory judgment respecting the proper application of the $210,000.00.
Respondents, in their answer to the petition, among other defenses, plead that rela-tors have been delinquent in their mortgage payments since September 1, 1974 in the total sum of $80,000.00, and that they (respondents) were entitled to apply the said sum of $210,000.00 on the principal of the note.
The transcript was filed by relators in this Court on January 28, 1975. We grant[582]*582ed an injunction on January 30, 1975 after a hearing,1 whereby respondents were enjoined from proceeding with a trustee’s sale of said properties provided that rela-tors file in this Court (on or before February 3, 1975) a good and sufficient bond, payable to respondents, to be approved by the Clerk of this Court, conditioned that relators shall pay all damages to respondents in the event it be held that the temporary injunction was properly denied by the trial court. Such a bond was filed by Pen-dleton Green Associates on January 31, 1975. In addition, we advanced the case on our docket and shortened the briefing times of the parties involved.2 See Rules 410, 411, 412 and 414, T.R.C.P.
We have the power to grant such writs, including the writ of injunction, as may be necessary to enforce or protect our jurisdiction over a pending appeal, and to preserve the subject matter of the appeal. City of Dallas v. Wright, 120 Tex. 190, 36 S.W.2d 973 (1931); Houtchens v. Mercer, 119 Tex. 244, 27 S.W.2d 795 (1930); Lee v. Lee, 355 S.W.2d 255 (Tex.Civ.App.—Houston 1962, mand. overr.). The subject matter of the pending appeal is whether the trial court properly refused to grant the requested temporary injunction. If respondents sell the subject property at a trustee’s sale while the appeal is still pending in this Court, the appeal will become moot and our jurisdiction over the pending appeal will have been unlawfully invaded and its subject matter destroyed, since there would then be no way we could enforce our judgment or decree in the event the relators should prevail in their appeal. Madison v. Martinez, 42 S.W.2d 84 (Tex.Civ.App.—Dallas 1931, writ ref’d) ; Nelson v. Blanco Independent School District, 386 S.W.2d 636 (Tex.Civ.App.—Austin 1965, writ ref’d n. r. e.).
Relators argue that no bond should be required as a condition to the issuance of an injunction by this Court. They rely on Powell v. Farm & Home Savings Association, 509 S.W.2d 734 (Tex.Civ.App.—Fort Worth 1974, no writ), and on Dawson v. First National Bank of Troup, 417 S.W.2d 652 (Tex.Civ.App.—Tyler 1967, no writ). The applicable statute, Article 1823, V.A.C.S., itself, does not require a bond when the injunction is issued by a Court of Civil Appeals to enforce or protect its jurisdiction and to preserve the subject matter of the litigation pending appeal; however, there is nothing in the statute (or case law) that prohibits the requiring of such a bond.
In Riverdrive Mall, Inc. v. Larwin Mortgage Investors, 515 S.W.2d 2 (Tex.Civ. App.—San Antonio 1974, no writ), the Court, in requiring the filing of such a bond by relator, stated:
“We have effectively prevented respondents from exercising the right granted under the deed of trust to foreclose upon the described property after the note became delinquent. Thus, if it should be found that the trial court did not abuse its discretion in denying the temporary injunction, respondents will have been wrongfully deprived of such valuable right for a period of at least two months. We cannot conceive of any equitable reason why respondents are not entitled to be protected for such potential loss. To hold that we have no power to require a bond in such circumstances would lead to the absurd situation of the relator actually trying to persuade the trial court to deny its request for a temporary injunction and thus secure the relief in the appellate court without the penalty of a bond. . . .”
We agree with the San Antonio Court that we not only have the power to require a bond to protect the other parties from a possible loss, but also the duty to do so.
[583]
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On Motion for Injunction
OPINION
PER CURIAM.
This is an original proceeding in this Court for an injunction. Pendleton Green Associates, Texas Valley Leisure Estates, Inc., and Community Projects, Inc., rela-tors, with leave of this Court first obtained, filed an application in this Court on January 28, 1975, pursuant to Rule 383, Texas Rules of Civil Procedure, and Article 1823, Vernon’s Ann.Civ.St., to enjoin Anchor Savings Bank and W. H. O’Donnell, its Substitute Trustee, respondents, frpm selling certain properties under the powers conferred by a deed of trust pending the disposition by this Court of the merits of an appeal from the denial of a temporary injunction by the trial court.
The trial court granted a temporary restraining order on January 6, 1975, which prohibited defendants (respondents) from conducting the trustee’s sale on January 7, 1975. The application for temporary injunction was denied by the trial court by an order that was signed and rendered on January 23, 1975. Plaintiffs (relators) have appealed.
Relators seek injunctive relief in this Court on the ground that the same is necessary in order for this Court to protect its jurisdiction of their appeal from the aforesaid order of the trial court. Otherwise, according to their application, our jurisdiction would be unlawfully invaded by the destruction of the subject matter of the appeal before we have decided the issues raised in the appeal.
Relators, as plaintiffs, filed suit against respondents in the District Court of Cameron County, Texas, on January 6, 1975, wherein they alleged: 1) they were the owners of an apartment complex in Har-lingen, Texas, together with certain fixtures and personal property located on the premises and used in connection therewith; 2) Anchor Savings Bank is the owner of a note which is secured by a deed of trust covering said properties; 3) at some time prior to the filing of the petition, Anchor drew $210,000.00 pursuant to a certain letter of credit and applied the same on the principal amount of the note; 4) the $210,000.00, in fact, constitutes an advance payment of several of the next succeeding monthly payments and should be applied against all monthly payments of principal, interest, insurance and taxes as the same become due until said sum has been exhausted; 5) the note was not in default when suit was filed and has never been in default; and 6) W. H. O’Donnell, Substitute Trustee, posted notice of trustee’s sale for January 7, 1975, and stated in the notice that the note was in default. Relators, in addition to relief by way of temporary restraining order and temporary injunction, until a trial was had on the merits, sought a declaratory judgment respecting the proper application of the $210,000.00.
Respondents, in their answer to the petition, among other defenses, plead that rela-tors have been delinquent in their mortgage payments since September 1, 1974 in the total sum of $80,000.00, and that they (respondents) were entitled to apply the said sum of $210,000.00 on the principal of the note.
The transcript was filed by relators in this Court on January 28, 1975. We grant[582]*582ed an injunction on January 30, 1975 after a hearing,1 whereby respondents were enjoined from proceeding with a trustee’s sale of said properties provided that rela-tors file in this Court (on or before February 3, 1975) a good and sufficient bond, payable to respondents, to be approved by the Clerk of this Court, conditioned that relators shall pay all damages to respondents in the event it be held that the temporary injunction was properly denied by the trial court. Such a bond was filed by Pen-dleton Green Associates on January 31, 1975. In addition, we advanced the case on our docket and shortened the briefing times of the parties involved.2 See Rules 410, 411, 412 and 414, T.R.C.P.
We have the power to grant such writs, including the writ of injunction, as may be necessary to enforce or protect our jurisdiction over a pending appeal, and to preserve the subject matter of the appeal. City of Dallas v. Wright, 120 Tex. 190, 36 S.W.2d 973 (1931); Houtchens v. Mercer, 119 Tex. 244, 27 S.W.2d 795 (1930); Lee v. Lee, 355 S.W.2d 255 (Tex.Civ.App.—Houston 1962, mand. overr.). The subject matter of the pending appeal is whether the trial court properly refused to grant the requested temporary injunction. If respondents sell the subject property at a trustee’s sale while the appeal is still pending in this Court, the appeal will become moot and our jurisdiction over the pending appeal will have been unlawfully invaded and its subject matter destroyed, since there would then be no way we could enforce our judgment or decree in the event the relators should prevail in their appeal. Madison v. Martinez, 42 S.W.2d 84 (Tex.Civ.App.—Dallas 1931, writ ref’d) ; Nelson v. Blanco Independent School District, 386 S.W.2d 636 (Tex.Civ.App.—Austin 1965, writ ref’d n. r. e.).
Relators argue that no bond should be required as a condition to the issuance of an injunction by this Court. They rely on Powell v. Farm & Home Savings Association, 509 S.W.2d 734 (Tex.Civ.App.—Fort Worth 1974, no writ), and on Dawson v. First National Bank of Troup, 417 S.W.2d 652 (Tex.Civ.App.—Tyler 1967, no writ). The applicable statute, Article 1823, V.A.C.S., itself, does not require a bond when the injunction is issued by a Court of Civil Appeals to enforce or protect its jurisdiction and to preserve the subject matter of the litigation pending appeal; however, there is nothing in the statute (or case law) that prohibits the requiring of such a bond.
In Riverdrive Mall, Inc. v. Larwin Mortgage Investors, 515 S.W.2d 2 (Tex.Civ. App.—San Antonio 1974, no writ), the Court, in requiring the filing of such a bond by relator, stated:
“We have effectively prevented respondents from exercising the right granted under the deed of trust to foreclose upon the described property after the note became delinquent. Thus, if it should be found that the trial court did not abuse its discretion in denying the temporary injunction, respondents will have been wrongfully deprived of such valuable right for a period of at least two months. We cannot conceive of any equitable reason why respondents are not entitled to be protected for such potential loss. To hold that we have no power to require a bond in such circumstances would lead to the absurd situation of the relator actually trying to persuade the trial court to deny its request for a temporary injunction and thus secure the relief in the appellate court without the penalty of a bond. . . .”
We agree with the San Antonio Court that we not only have the power to require a bond to protect the other parties from a possible loss, but also the duty to do so.
[583]*583According to statements made by counsel for the parties during oral argument at the hearing on January 30, 1975, the properties were purchased by relators in April 1974 for approximately $2,000,000.00, and their equity therein as of September 1, 1974 after Anchor Savings Bank “drew” the $210,000.00 was in the neighborhood of $800,000.00; the balance due on the note after the monthly payment was made on August 1, 1975 was about $1,400,000.00; if the full $210,000.00 is rightfully applied to the amount of principal owing on the note following the August payment, then the principal balance due on the note as of September 1, 1975 would be reduced to about $1,200,000.00; the note was payable in monthly installments of about $16,000.00 each; ad valorem taxes for the year 1974 in the amount of some $13,000.00 would become delinquent on February 1, 1975 if not paid by that date; and, the rental income from the apartments (being paid to relators) was around $11,000.00 per month.
A serious dispute exists between the parties as to whether the note is actually in default. If relators are correct in their position, then the $210,000.00 will constitute a prepayment of some fourteen (14) monthly payments, computed from and after August 1, 1974. If, on the other hand, it be determined that the $210,000.00 is to be applied on the principal of the note, then the note has been in default since September 1, 1974, and the granting of the injunction by this Court will have deprived respondents of a valuable right for a period of probably three months. The respondants suggest that we require the relators to file a bond in the amount of at least $150,000.00. The relators say that a bond of $25,000.00 should be sufficient if a bond is required. We conclude that the equities of this case require that a bond be filed as a condition to the issuance of an injunction. It is the duty of this Court to require that a bond be made and filed in order that respondents may be adequately protected against substantial financial loss in the event the appealed judgment is sustained. We have some discretion in determining the amount of the bond. Accordingly, we believe that a bond in the amount of $40,000.00, under the circumstances, affords respondents sufficient protection.
Since the relators Texas Valley Leisure Estates, Inc. and Community Projects, Inc. did not join in the execution of the bond, the order granting the injunction in their favor is hereby rescinded. The order granting the injunction in favor of the relator Pendleton Green Associates is confirmed. It is also further ordered that respondents refrain from posting any notice of trustee’s sale pending final disposition of relators’ appeal. Nothing done by this Court or contained in this opinion shall be taken or construed as an expression of opinion by us upon the merits of the appeal.