Carlin v. Hudson , 12 Tex. 202 ( 1854 )

Wheeler, J.

The cases in which injunctions are granted to restrain the alienation of property, are those where it is indispensable to secure the enjoyment of specific property; or to preserve the title to such property ; or to prevent frauds, or gross and irremediable injustice in respect to such property. (2 Story, Eq. chap. 23.) The present manifestly does not come within that description of cases. The proposed sale of the land, as the property of Ford, could not operate to dispossess the plaintiff, or deprive him of its enjoyment, or to defeat his title, or embarrass him in the prosecution of his legal remedies for any injury to his title or possession, if indeed the property was his by a fair and bona fid& purchase, made before any lien had attached or any right had accrued to the plaintiffs in execution by reason of the judgment. They, by virtue of their execution, could only sell the title, or interest of Ford in the land, whatever that might be. If he had none, the sale could not work any irreparable injury to the real owner. And to permit the execution of judgments to be enjoined for such causes, would be to enable judgment debtors, by fraudulent transfers of property, to embarrass the collection of debts, by imposing upon their creditors the necessity of almost interminable litigation and delay. The present was not a proper occasion for the Court to interpose its preventive and protective authority by injunction. (Henderson v. Morrill Supra; 3 Tex. R. 152.) The injunction was improvidently awarded. And as the threatened sale was the only injury complained of, and the obtaining of an injunction the sole purpose of the suit, the petition was rightly dismissed for the want of equity.

But the Court went further and gave judgment against the plaintiff in the injunction and his sureties for the amount of the judgment against Ford. This might have been proper, if Ford had been plaintiff in the injunction, or if the plaintiff had been a party to the judgment. But he had in no way become a party thereto; and surely his attempt to restrain the sale of the land, did not authorize the making him a party to the judgment against Ford, or the award of judgment against him and his sureties for the amount of that judgment; or for any amount, without averment and proof by the plaintiffs in execution, of the damages .occasioned by the sueing out of the injunction. The statute, authorizing the Court to award damages for delay, on the dissolution of an injunction, (Dig. Art. 1602,) has reference, to injunctions to restrain the collection of money, obtained by the judgment debtor, ór some one who is a party to the judgment.

It was competent for the plaintiffs in execution to have pleaded to the petition for injunction, the damages sustained by reason of the improper sueing out of the injunction ; or they may have an action on the bond for the injury thus oocasioned; but they can only recover, upon proof of the damages they have sustained by reason of the injunction. (Hammons v. Belcher, 10 Tex. R. 271.)

Because, therefore, the Court erred in giving judgment against the appellant and his sureties, for the amount of the judgment, on dissolving the injunction and dismissing the case, the judgment must be reversed, and such judgment be here rendered as the Court below ought to have rendered; which is that the case be dismissed.

Reversed and re-formed.