Reports of Cases Argued and Decided in The Supreme Court of the State of Texas (Texas Reports), Vol. 5, Part of December Term, 1849 at Austin and Part of the Galveston Term, 1851
Gregg and Others v. Cole and Others, 5 Tex. 416 (1849).
Where a mortgagee has brought suit to enforce the mortgage, another party, who claims by title paramount to that of the mortgagor, cannot sustain a separate action for an injunction to restrain the mortgagee from proceeding in his suit on the mortgage.
Appeal from Milam.
This was a proceeding instituted by the appellants, to enjoin the appellee Cole, from prosecuting a suit previously commenced by him, by attachment, against Gilbert Longstreet, in the District Court of Milam county. The cause of action, as set forth in the petition, was, that in 1839, Cole sold a league of land to Longstreet, a citizen of the State of Georgia; that Longstreet, being an alien, acquired no property in the land, but that it became vacant; and that the plaintiffs located land certificates upon it; that Cole had brought suit against Longstreet for the recovery of $6,500, and had caused an attachment to be issued and levied upon the land, as the property of Longstreet; and that unless Cole should be restrained from prosecuting his suit, he would probably obtain judgment and cause the land to be sold, before the plaintiffs could consummate their titles; in which, they alleged, they had been delayed, in consequence of the suspension of the business of the land office. The plaintiffs prayed for an injunction to restrain Cole from the further prosecution of his suit; that he be decreed to convey to them a “quit claim” to the land; and that the title be adjudged to them.
To this petition there was a demurrer, sustained; and the plaintiffs appealed.
Taylor, for appellants.
Gillespie, for appellees.
Lipscomb, J., did not sit in this case.
Wheeler, J., We are of opinion that the demurrer was rightly sustained. That the appellants had no legal right thus to interpose, and arrest the proceedings in the appellees suit, is, we think, too plain for argument.
Created on 26 May 2004 and last revised on ___________ 2004