Ward v. Billups

COLLARD, Judge.

Plaintiffs’ petition claimed the property as their homestead, and that it was such at the time and before the deed of trust was executed, and on this account they asked to be protected therein, and prayed that defendants be restrained in the enforcement of the order of sale issued under the judgment of Wallis, Landes & Co. foreclosing the deed of trust. The district judge by his fiat in chambers ordered the clerk to issue the writ prayed for; the clerk issued the writ commanding defendants to desist from selling or causing to be sold the lot claimed by plaintiffs as a part of their homestead until further order of the District Court. Plaintiffs’ injunction was still pending when the execution was issued, and the property was sold thereunder to Wallis, Landes & Co., defendants enjoined.

The sale under the execution was in violation of the letter and spirit of the injunction. The order of sale could not have effect as an execution until the sale of the specific property therein described was made, nor could an ordinary execution issue thereunder until the injunction restraining the execution of the order of sale was disposed of. The judgment foreclosing the deed of trust was by its terms to he enforced by an order of sale, and when the property ordered sold was exhausted, if the judgment was not satisfied, execution was to be issued, and the unpaid portion of the debt was to he made in the ordinary method by levy and sale.

The object of plaintiffs’ suit was to stop proceedings to sell the property until the question of homestead was adjudicated, and the object and purpose of the writ was to prevent the sale of the lot by any process of the court under the judgment until the court decided the homestead issue. Defendants attempted to defeat these purposes of the suit and the writ by suing out execution and causing sale to be made before any adjudication of the homestead question, and while the injunction was still in force. This was a contempt of the court’s order enjoining the sale; no title could pass by such proceeding. Seligson v. Collins, 64 Texas, 315; 2 High on Inj., secs. 1434, 1447; Rapal. on Contempt, sec. 51; Morris v. Bradford, 19 Ga., 527; Farnsworth v. Fowler, 1 Swan (Tenn.), 1.

It was error to overrule the exceptions of plaintiffs to that portion of defendants’ answer setting up the title acquired under the execution sale, and error not to exclude the evidence of such sale, for which we think the judgment of the lower court should be reversed and the cause remanded.

Reversed and remanded.

Adopted March 11, 1890.