Opinion
No. 658.
November 7, 1914. Rehearing Denied December 19, 1914.
Appeal from District Court, Hemphill County; F. P. Greever, Judge.
Action by W. J. Conatser against H. J. Winkle and another. From a judgment perpetuating the injunction, defendant named appeals. Affirmed.
Fisher Palmer, of Canadian,: for appellant. Hoover Hoover, of Canadian, for appellee.
Appellee, Conatser, filed this suit in the district court of Hemphill county, seeking to restrain C. H. Tipps, the sherif of said county, from selling certain real estate, which had been levied upon by virtue of an execution issued out of the district court of Hemphill county, upon a certain judgment rendered on the 6th day of September, 1913, against Mrs. Mary A. Conatser, wife of the plaintiff, and in favor of the appellant, Winkle., The judgment upon which this execution was issued was based upon a judgment recovered in January, 1913, by H. J. Winkle against Mrs. Conatser, in Stanislaus county, Cal. The California judgment was recovered by Winkle for certain commissions alleged to be due him as a real estate broker in the exchange of certain property situated in California, and belonging to Mrs. Conatser. Appellee was made a party defendant pro forma, but neither of the judgments were rendered against him personally. From a judgment perpetuating the injunction this appeal is prosecuted.
Appellant first contends that the injunction herein should not have been granted because it appears from the petition that the plaintiff had an adequate remedy at law for the injuries complained of. Article 4643, Vernon's Sayles' Civil Statutes, provides that judges of the district and county courts may grant writs of injunction in the following cases:
"(3) In all cases where the applicant for such writ may show himself, entitled thereto under the principles of equity, and as provided by statutes and all other acts of this state, providing for the granting of injunctions, or where cloud would be put on the title of real estate being sold under an execution against a person, partnership or corporation, having no interest in such real estate subject to the execution at the time of the sale, or irreparable injury to real estate or personal property is threatened, irrespective of any legal remedy at law."
The fact that the applicant for injunction had an adequate remedy at law was formerly a sufficient ground under the decisions of this state for denying him relief in equity. The above-quoted statute was enacted to change this rule. By the express provisions of paragraph 3, if the title to his real estate is about to be clouded, he is now entitled to his writ of injunction, "irrespective of any legal remedy at law." Lakeside I. Co. v. Kirby, 166 S.W. 717; Houston Oil Co. v. Davis, 154 S.W. 337; Acme Cement Plaster Co. v. American C. P. Co., 167 S.W. 185.
It is said, in Texas Land Mortgage Co. v. Worsham, 5 Tex. Civ. App. 245, 23 S.W. 938, that if a judgment is on its face valid and is a subsisting lien on lands requiring extrinsic and parol evidence to defeat it, equity will enjoin execution thereunder and order its cancellation as a cloud on the title. This seems to be the rule announced by the great weight of authority. Under article 4624, Vernon's Sayles' Civil Statutes, neither the separate property of the husband nor the community property, other than the personal earnings of the wife, and the income, rents, and revenues from her separate property, shall be subject to the payment of debts contracted by her, except those contracted for necessaries furnished her or her children. Neither the California judgment nor the judgment rendered in Hemphill county, upon which this execution was issued, shows the nature of the original debt upon which suits was instituted against Mrs. Conatser. Parol evidence is therefore necessary, to establish the fact that she was not sued for necessaries furnished her or her children, and that the property was not purchased with her, separate earnings, thus bringing it within the rule announced in Texas Land Mortgage Co. v. Worsham, supra. The land upon which the execution had been levied was conveyed to appellee, and was prima facie community property.
The trial court did not err in holding that the debt due from Mrs. Conatser to appellant as commissions for the exchange of her separate property in California could not be classed as a debt for "necessaries" within the meaning of the statute.
We think the title of Act 33d Leg., pp. 61 to 63, c. 32 (Vernon's Sayles' Ann.Civ.St. 1914, §§ 4621, 4622, 4624), meets the requirements of article 3, § 35, of the Constitution. Taggart v. Hillman, 42 Tex. Civ. App. 71, 93 S.W. 245; Focke v. State (Cr. App.) 144 S.W. 267; Brown v. State, 57 Tex.Cr.R. 269, 122 S.W. 565; Singleton v. State, 53 Tex.Cr.R. 625, 111 S.W. 736.
We find no reversible error in the record, and the judgment is affirmed.