Texas Land Company v. T. J. Turman, 53 Tex. 619

Bonner, Associate Justice. We are met on the threshold of this case with a preliminary question, which though under the conclusion to which we have arrived may not be absolutely necessary to the final disposition of the case, yet is so intimately connected with it, that, if passed over in silence, might indirectly misrepresent the views of some of the members of the court. This question is, the right of the Texas Land Company to an injunction to restrain the proceedings of the justice of the peace in the forcible detainer suit.

It has been the evident and wise policy of our general legislation, in proceedings in forcible entry and detainer, to confine the question to the right of possession only, and to have this determined as speedily as possible. Hence it would follow, that a third person who claims to have the right of possession by virtue of superiority of title, cannot intervene in such suits, as the justice of the peace cannot try the question of superiority of title, if indeed such court from its limited powers could permit an intervention by a third party in any event. Warren v. Kelly, 17 Tex., 552.

The practical effect, however, of Camby v. Stanfield is to permit a tenant holding over to defend his possession by showing that subsequent to the lease he purchased his landlord’s title under execution sale, and thus indirectly, in such case, to raise the question of title. 10 Tex., 546. Subsequent decisions of this court have recognized this doctrine, and it has further been held, that the tenant in possession may lawfully attorn to a third party who had purchased at execution sale the title of the landlord. Andrews v. Richardson, 21 Tex., 297; Gallagher v. Bennett, 38 Tex., 295.

Under the authority of the principles announced in these decisions, if the Texas Land Company purchased the title of Turman to the rented premises under execution against him pending the lease to Wilson, it is not perceived why the company, particularly if they could not intervene in the suit of forcible detainer, should not, by injunction in the district court, stay the proceedings before the justice of the peace until the question of title could be determined; it having been alleged that Turman was insolvent and could not respond in damages.

If this were not permitted, Turman would, under color of law, take possession of the land from Wilson, who had already attorned to the Texas Land Company, and thereby change his attitude in suit of trespass to try title, from that of plaintiff, upon whom would be the burden of proof, to the negative position of defendant. It is believed that the provisions of the statute of forcible entry and detainer, making the decision of the county court on appeal or certiorari from the judgment of the justice of the peace, final and conclusive (Laws 15th Leg., 163; R.

S., art. 2461), was intended as the rule between the immediate parties only. The case of Chadoin v. Magee, 20 Tex., 476, in which the injunction was dissolved, was between such parties. Upon the authority of the cases first above cited, it is the opinion of a majority of the court that the injunction properly issued under the facts and circumstances of the present case. This is also in accord with the general policy of our practice, to avoid a multiplicity of suits. We are all agreed, however, that, upon the sworn answer of the defendant Turman, the injunction was properly dissolved.

The only remaining question is this: Did the court err in dismissing the case upon the dissolution of the injunction, and in not retaining it for final hearing upon the merits. Upon this question also we all agree. The petition, independently of the relief sought by the injunction, contained substantially the allegations of one in trespass to try title. Dangerfield v. Paschal, 20 Tex., 552; Bridges v. Cundiff, 45 Tex., 440; Grimes v. Hobson, 46 Tex., 416; Titus v. Johnson, 50 Tex., 224.

In such case, if an injunction has been obtained, and is on motion dissolved, it is error thereupon to dismiss the petition, but it should be continued over forbearing on the merits; and in this particular differs from the dissolution of an injunction restraining the collection of money, in which case, unless the petition is asked to be thus continued over, it will be dismissed. Burnley v. Cook, 13 Tex., 591; Dearborn v. Phillips, 21 Tex., 451; Floyd v. Turner, 23 Tex., 294. For the error in dismissing the petition, the judgment is reversed and cause remanded.

Reversed and remanded. [Opinion delivered November 4, 1880.] SEPARATE OPINION OP JUSTICE GOULD. I concur in the judgment, but not in the views, expressed in the opinion on the subject of the right of appellant to an injunction. The

summary proceeding of forcible entry and detainer is designed to afford a speedy remedy for the recovery of possession, not to every person legally entitled to possession, but to those only who have been deprived thereof, in one of the ways specified in the statute. Cooper v. Marchbanks, 22 Tex., 1. Formerly the action of the justice’s court in such cases was subject to revision, on certiorari, in the district court; but now the statute allows an appeal to the county court, and expressly provides that the judgment of that tribunal shall be “conclusive of the litigation.” Rev.

Code, art. 2461; Acts of 15th Leg., p. 163, sec. 21. The district court is now without jurisdiction to try such actions, or to in any way revise the proceedings of those courts exclusively entrusted with the administration of this

summary remedy. Blythe v. Deaton, 48 Tex., 198; Hardeman v. Morgan, id., 103. Evidently, under the law in force when Andrews v. Richardson (21 Tex., 287) was decided, the district court might have properly interfered by injunction, and yet now, under the same state of facts, might properly decline to interfere.

If the title of the landlord, after he leases to a tenant, passes to a third party by transfer or by operation of law, and the tenant voluntarily attorns to that party, then, in case of action of forcible entry and detainer by the original landlord against the tenant, the latter may defend under the rights of his new landlord, who has acquired all the possessory rights of the original landlord. Tilghman & West v. Little, 13 Ill., 241; Hillman v. Fogg et al., 99 Mass., 11; Andrews v. Richardson, 21 Tex., 287; Camby v. Stanfield, 10 Tex., 546. For the purpose of determining the right to possession and to the

summary remedy, the justice’s court is competent to examine the facts by reason of which the tenant claims that he, or his new landlord, had become substituted to the possessory rights of his original landlord. 10 Tex., supra. But if the tenant fail in establishing his defense, whether his failure be caused by the refusal of the justice’s court to hear and examine it, or by the fact that the court, after hearing, decides against him, neither he nor any other party to the suit can remove the litigation to the district court. See Smith v. Ryan, 20 Tex., 661; Chadoin v. Magee, 20 Tex., 176.

Surely the landlord has no better right than the tenant to' take the case to the district court by injunction. Through the tenant (22 Tex., 661, supra), and possibly if the tenant do not act in concert with him, then by intervention, he may assert whatever rights he has under the statute.' If he have no rights which can be asserted in the

summary proceeding, then, like others who may be true owners and entitled to the possession, but who are not of the class specified by the statute, he is simply remitted to the ordinary remedy by action of trespass to try title. If the district court may on such grounds enjoin the judgment of the justice’s or county court, the object of the law is liable to be defeated. The cases cited in the opinion illustrate how valueless this

summary remedy becomes when transferred to the district court, and united, as attempted in this case, with an action of trespass to try title. Chadoin v. Magee, 20 Tex., 176; Andrews v. Richardson, 21 Tex., 287. The practical result will be, that in many instances the action will travel through four courts, the justice’s, county, district and supreme. Believing the question to be one of importance, I have thought proper to express my views in this way.