Cook v. Texas & Pacific Railway Co.

STEPHENS, Associate Justice. The assignment of errors was stricken from this record by the Supreme Court, and unless there is fundamental error in the judgment it must be affirmed. Defendant in error obtained a temporary injunction, restraining the sale under execution of four lots of land situated in the same block in the town of Baird. On final hearing the injunction was made perpetual. The sale was restrained on the ground, that defendant in error was not a party to the judgment upon which the execution issued, and that by the sale a cloud would be cast upon its title; and as the four lots might pass into the *146 hands of as many different purchasers, there was an apprehension of a multiplicity of suits. No facts were alleged tending to show that the contemplated sale under execution would affect the title of defendant in error. Under the well settled rule in this State, it must be held that the petition upon which the judgment enjoining the sale was rendered will not support such a judgment. Mann v. Wallis, Landes & Co., 75 Texas, 611, and cases there cited. In the case of Purinton v. Davis, 66 Texas, 455, where seven tracts of land had been levied upon as the property of the defendant in the execution, an injunction of the sale at the instance of one not a party to the judgment was refused, because the petition did not state facts showing that a sale would cast a cloud upon the title of the owner. In reference to the alleged multiplicity of suits apprehended in that case, the court, in substance, stated, that as no cloud would be cast upon the title by the sale, the owner had no occasion to sue the purchasers, and there was no ground for apprehending that the purchasers would institute suits without even a cloud of title. In the case relied on by appellee to sustain the judgment (Anderson County v. Kennedy, 58 Texas, 624), which was a suit to enjoin a tax sale of thirteen tracts of land, to prevent a multiplicity of suits alone was not announced as one of the grounds upon which the injunction was sustained, but to prevent a multiplicity of suits to remove cloud from title. Where the title is not affected by the sale, there is no occasion, in legal contemplation, for any suit whatever. The petition of appellee being entirely wanting in this respect, fundamental error is presented, which necessitates a reversal of the judgment. The cause will be remanded for further proceedings, should appellant desire to amend. Reversed and remanded. Delivered April 12, 1893.