Lewis v. Hoerster

MURRAY, Justice.

Appellee D. J. Hoerster, as receiver of the Bank of Fredericksburg, instituted this suit against, among others, appellants lb M. Lewis and his wife, Nettie A. Lewis, seeking a mandatory writ of injunction commanding appellants to vacate certain real property and to desist from further 'slandering appellee’s title to said land and premises. Appellants were alleged to he in possession of the property.

The trial judge, after a hearing, granted the injunction, and by his decree appellants were ordered to surrender possession of the premises and desist from asserting any claims to said property or from casting any further slander upon appellee’s title to the property. The • decree further ordered, among other things, that appellants take any and all live stock out of and from the 1,000-acre mountain pasture and the 200-acre horse pasture of the Tisdale ranch property.

It is quite plain, from the above, that the trial judge, by mandatory injunction, determined the question as to who was entitled to possession of the real estate and ordered those in possession to vacate and turn their possession over to others. It is not alleged that appellants acquired possession of the property by fraud or force.

The law is clear in this state that the equitable remedy of mandatory injunction does not lie to determine the right of possession of land or to transfer the possession thereof from one person to another, where the persons in possession have not obtained possession by force or fraud. Hill v. Brown (Tex.Com.App.) 237 S.W. 252; Moore v. Norton (Tex.Civ.App.) 215 S.W. 373; Mercer v. Fitzhugh (Tex.Civ.App.) 261 S. W. 819; Simms v. Reisner (Tex.Civ.App.) 134 S.W. 278; Rogers v. Day (Tex.Civ.App.) 20 S.W.(2d) 104.

Appellee apparently had three adequate remedies at law, to wit: Sequestration article 6840, R.S.1925; trespass to try title, articles 7366 and 7367, R.S.1925; forcible entry and detainer, article 3973, R. S.1925. There is no showing that these legal remedies would not furnish adequaté relief.

Accordingly, the judgment of the trial court is reversed, and the petition dismissed. The cost of this appeal, as well as the costs in the court below, is adjudged against appellee.