90 S.W.2d 331 | Tex. App. | 1936
G. D. Hayes brought this suit in the district court of Hill County on August 5, 1935, against First Trust Joint Stock Land Bank of Chicago and alleged, in substance, that on or about the 14th day of December, 1925, he and his wife executed and delivered to First Trust Joint Stock Land Bank of Dallas a promissory note in the sum of $5,300, which note was alleged to belong to defendant. It was further alleged that at the same time Hayes and wife executed and delivered to said Land Bank a deed of trust on two tracts of land, one for 54.89 acres and the other for 8 1/3 acres; that the lien was good as to the larger tract but that the smaller tract constituted the homestead of the plaintiffs at the time of the execution of said lien; and that no part of said indebtedness constituted a valid lien on the smaller tract except to the extent of $100, being a part of the purchase money of said land. He alleged that he had tendered and was willing to pay the balance of said unpaid purchase money, with interest. He prayed that said purported lien, in so far as the same applied to the homestead tract, be held invalid and canceled except to the extent of $100, and that pending trial a temporary injunction be issued restraining a sale of said homestead tract by the trustee under the power given in the deed of trust. The defendant, among other things, filed a plea in abatement in which it was alleged that on July 15, 1935, the First Trust Joint Stock Land Bank of Chicago had brought suit in the district court of Dallas county against G. D. Hayes, the Missouri Kansas Railway Company of Texas, Texas Power Light Company, and E. C. Brand, banking *332 commissioner of the State of Texas, to recover on said note for $5,300, and to foreclose its lien on all of said land. The defendants prayed that this suit be abated pending a trial of the suit filed in the district court of Dallas county. The trial court, after hearing the evidence on the application for temporary injunction, overruled the plea in abatement and granted the temporary injunction restraining the defendant from selling or attempting to sell the 8 1/3acre tract of land under the powers given in the deed of trust pending a trial on the merits. Said order contained the following provision: "This temporary injunction herein granted shall remain in force until the final determination of this suit upon its merits. Said temporary injunction, however, is not intended to prevent defendant from advertising said land for sale after judgment may be obtained authorizing such sale." The defendant appealed.
There has been no trial of the cause of action on the merits. The appeal is from the order granting the temporary injunction and not from the ruling on the plea in abatement, and hence the latter ruling will be considered only in so far as it prejudiced appellant's right, if any, to defeat the application for a temporary injunction. 1 Tex.Jur. 189, § 138; Gulf B. V. R. Co. v. Weddington,
The suit in Dallas county did not involve the Land Bank's right to sell the land under the powers given in the deed of trust. The pleadings in that suit assert no such right. The order appealed from in the case before us expressly provides that it shall not prevent a judicial sale in satisfaction of the debt. Therefore the judgment appealed from temporarily restraining a sale under said deed of trust in no wise interfered with the jurisdiction of the district court of Dallas county to enter judgment for the debt and to foreclose said lien through judicial sale as prayed for in the suit pending in Dallas county. Houston Oil Co. v. Village Mills Co.,
Moreover, appellant by filing suit in the district court of Dallas county for its debt and to foreclose its lien on the land in question waived its right, at least so long as that suit is pending in court, to sell the same under the powers given in the deed of trust. Gandy v. Cameron State Bank (Tex.Civ.App.)
The judgment of the trial court is a firmed. *333
