Henderson v. Morrill , 12 Tex. 1 ( 1854 )

Hemphill, Ch. J.

The appellant obtained an injunction to restrain the Sheriff from selling a tract of land, under a judgment in favor of Amos, Morrill (one of the appellees) against John C. Carter and Mary A. Carter, in which said land was decreed to be sold in satisfaction of said judgment, and under an order of sale, directing the said land to be sold in conformity with said decree.

On demurrer to the petition, the injunction was dissolved, the petition dismissed, and the plaintiff appealed.

The plaintiff avers that he is the rightful owner of the land; but he does not show by what title he claims, or that the Carters had no interest in the land. He alleges no facts to show that the judgment was obtained by fraud and collusion between Morrill and the Carters, and in relation to lands which could not be legally subjected to the satisfaction of such judgment. He does not aver that he is in possession, or that he will suffer any loss or damage by the sale. His right to the land cannot be injuriously affected by a judgment between third parties, or any proceedings to enforce said judgment.

The decree complained of was entered in the exercise of a competent jurisdiction, and cannot be collaterally attacked, „or enjoined, on vague allegations of rights in tjjird parties, and of fraud against those rights ; and especially where these rights cannot be seriously prejudiced, whether the judgment be rendered with or without fraud.

The plaintiff does not aver his ignorance of the pendency of the suit, the execution of which he now seeks to enjoin. If he had such knowledge, and had any well founded apprehension of danger to his rights, he should have intervened during the proceedings, and not after the decree.

The whole showing of the plaintiff' is vague and insufficient; and the demurrer was rightly sustained. (3 Tex. E. 152)

Judgment affirmed.