George B. Williams and Wife v. M. E. Pouns, 48 Tex. 141

Moore, Associate Justice. The vital question to be decided in this case is,—Does an appeal from a final judgment dissolving the injunction and dismissing the bill, where the condition of the appeal bond is that, appellant will prosecute the appeal with effect, and perform the judgment, sentence, or decree of the Superior Court in case the decision of said court shall be against the appellant, (Paschal’s Dig., art. 1491,) keep the injunction in force during the pendency of the appeal?

It is not to be denied, that in England, and a majority, perhaps, of the States, it is well settled, that an appeal from the judgment dissolving the injunction will not have this effect. “An appeal,” says Mr. High, in his work on Injunctions, (sec. 893,) “from a decree dissolving an injunction does not have the effect of reviving and continuing the injunction itself, since the process of the court, when once discharged, can only be revived by a new exercise of judicial power.

An appeal being merely the act of the party, cannot, of itself, affect the validity of the order of the court; nor can-it give now life and force to an injunction which the court has decreed no longer exists. It follows, therefore, that an appeal from a decree dissolving an injunction which had been granted to stay proceedings under an execution at law, cannot have the effect of reviving the injunction, so as to operate as a stay of the proceedings at law : and the plaintiff in execution may proceed to enforce his judgment, notwithstanding the appeal.” (Wood v. Dwight, 7 Johns. Ch., 295; Hoyt v.

Gelston, 13 Johns., 139; Chegary v. Scofield, 1 Halst. Ch., 525; Garrow v. Carpenter, 4 Stew. & Port., 336.) The contrary doctrine is maintained by the courts of Kentucky, Virginia, and Mississippi. (Yocum v. Moore, 4 Bibb, 221; Turner v. Scott, 5 Rand., 332; Penrice v. Wallis, 37 Miss., 172.) And although the question has never been directly ruled upon by this court, we think it has been generally recognized by the legal profession, and the courts throughout the State, ever since the organization of our judicial system, that the appeal has this effect with us. (Fisk v.

Miller, 20 Tex., 579.) To hold that the appeal would not suspend the decree dissolving the injunction during its pendency in this court, would require an exception to a general rule, as to the effect of appeals upon the judgments of inferior courts, for which we can see no good reason. (42 Tex., 508, 513.) The question presented in this case, it will be observed, is not whether the appeal will revive a judgment which had been dissolved previous to the final judgment from which the appeal is prosecuted, but whether an injunction, which was in full force and effect when the final judgment from which the appeal is prosecuted was rendered, does not remain in force while this judgment is suspended or superseded by the appeal.

And this, too, where the sole object of the suit was to obtain the injunction. It is needless to determine whether there was any error in the ruling of the court excluding the deed of trust as evidence against appellant, George B. Williams, for want of notice that it would be offered as a duly-recorded instrument, without proof of its execution, (Paschal’s Dig., art. 3716,) or in admitting it as the deed of Mrs.

Williams, on the certificate of its acknowledgment by her as a married woman, by an officer authorized to take such acknowledgment, without proof of its execution by her husband, or that he had consented to its execution by her; for the fact that Williams not only executed the deed himself, but that he also consented and requested his wife to execute it, was, at a subsequent stage of the case, testified to by each of them, as well as by the officer who certified to their acknowledgment of the deed.

That the beneficiaries, or cestui que trust, gave an adequate consideration to support the deed, and neither of them participated in, or had any knowledge of, the fraud, (if any was, in fact, practiced upon Mrs. Williams,) is beyond question. That she cannot, therefore, impeach the certificate of her acknowledgment, as she seeks to do in this case, cannot now be regarded as an open question in this court. (Hartley v. Frosh, 6 Tex., 208; Shelby v.

Burtis, 18 Tex., 644.) It is well settled, that when a party is enjoined from bringing suit upon a note, that such injunction suspends the statute of limitations during the time that it continues in force. (High on Inj., sec. 20.) We think the like rule should apply when it is not the bringing of a suit upon the note which is enjoined, but the enforcement of the contract given to secure its payment, and which, though valid and binding, could not, aside from the injunction, be enforced by suit, because it embraced the homestead of appellant.

Evidently, the only fair and reasonable construction which can be given to the terms of the trust deed directing the sale of the laud in case of default of payment of the notes, is that it should be sold at the court-house-door of the county in which it was situated when sold.

For the error of the court in excluding evidence to prove that an appeal had been taken from the judgment of the District Court dissolving the injunction, restraining the trustee from selling the land for which this suit is brought, and which, from the record, we must presume was pending in this court at the time the land in controversy was sold by the trustee, and purchased by appellee, the judgment is reversed, and the cause remanded. Reversed and remanded.