Gaskins v. Peebles, 44 Tex. 390

Gaskins v. Peebles

44 Tex. 390 | Tex. | 1876

Moore, Associate Justice.

If an injunction was ever issued in this case, which can only be inferred from the judgment of the court ordering its dissolution, it was certainly unauthorized. The petition was not sworn to, nor was a bond given to the party to be stayed in the collection of his debt, as is expressly required by the statute. (Paschal’s Dig., arts. 3929, 3933.) There can be no question therefore that the court did not err in dissolving the injunction if, as we have said, it was ever issued. And unless the plaintiff had asked to continue the case over, and proffered to amend his petition so as to show a cause of action or ground for relief against Boone, it cannot be said that, as to him at least, the petition was not properly dismissed.

It may be urged that these objections to the petition do not apply to the defendants, Peebles and wife, and therefore the petition should not have been dismissed as to them. If plaintiff has title to the land and is not bound by the judgment against his vendor, Bush, as he is in possession of the lot, and it is not alleged that Peebles and wife have done anything to disturb or interrupt this possession, or that they have threatened or can legally do so, or that the deed from the sheriff to Mrs. Peebles casts a cloud on his title, there is no necessity for the interposition of the court. If, however, the decree against Bush is binding upon him he certainly has no ground for relief, so far as is shown in his *392petition, unless it is by reason of the alleged adjustment of the amount of purchase-money justly chargeable on the portion of the lot purchased of Bush and the agreement that this sum should be paid from the rent of the premises. In this aspect of the case the petition must be regarded as a suit for specific performance. But if so, we are constrained to say the facts relied upon, the consideration for the agreement, the time when it was entered into, its terms and stipulations, are all so vaguely and indefinitely presented in the petition, together with the failure to account for his delay in asking its enforcement at an earlier day, forbid our saying that the court erred in holding, in effect, that the petition did not present such a case as required the court to grant relief of this character.

The judgment is therefore affirmed.

Affirmed.