Spencer v. Rosenthall, 58 Tex. 4

Spencer v. Rosenthall

58 Tex. 4 | Tex. | 1882

Delany, J. Com. App.

From the judge’s statement appended to a bill of exceptions contained in the record, it appears that the injunction was dissolved for the following reasons: First, it was not alleged that the land was the homestead of plaintiffs; second, Mrs. Annie E. Spencer was not a party to the judgment against her husband ; and third, she had a complete remedy at law.

It seems to be well settled, in this state at least, that if land belonging to A. is levied on" as the property of B., that fact alone does not entitle A. to an injunction to restrain the sale. For such a sale could not ordinarily cloud or impair the title of A. See Whitman v. Willis, 51 Tex., 426-28; Carlin v. Hudson & Hudson, 12 Tex., 202; Henderson v. Morrill, 12 Tex., 1.

There is, however, a recognized exception to this rule, in a case where the wife applies for an injunction to restrain the sale of the homestead upon execution against the husband. Baxter v. Dear, 24 Tex., 17. But whether the court would, upon 'the application of the wife, enjoin the sale of her separate property, other than the *6homestead, upon such‘ an execution, is not so clear. A remark made by Chief Justice Hemphill in the case of Clegg v. Varnell, 18 Tex., 294, appears to sanction such a conclusion; but there the land levied on was the homestead as well as the separate property of the. wife, and the attention of the court was mainly called to other features of the case, and this point was not considered. x

[Opinion approved November 6, 1882.]

In the case before us, we do not see how the mere fact that the plaintiff is the wife of the defendant in the judgment should place her in a position different from that of any other owner of the property. The sale of the property could not cloud her title; ■ and she has a plain, adequate and complete remedy at law.

Counsel for appellants seem to apprehend that, if the sale should take place, the wife would be cut off from all remedy, under the rule announced in the case of Wallace v. Campbell, 54 Tex., 87. But the rule there laid down could work no harm to the plaintiff in this suit. The deed to Mrs. Campbell contained no recital that the land was bought with her separate means, or that it was intended for her separate use, and thus furnished to the creditor no notice of such fact. But from the allegations of the petition in this case we infer that the deed to Mrs. Spencer shows upon its face that the land was conveyed to her for her sole use and benefit; and thus gives to creditors and purchasers notice of her claim. See Kirk v. Navigation Co., 49 Tex., 213; also 1 Law Reporter, 487.

We conclude that there is no error in the judgment and that it should be affirmed.

Affiemed.