The statement of the nature and result of this suit is thus given by counsel for appellants in their brief:
"This suit was brought by appellees, Van Evans and his wife Judith F. Evans, and John H. Evans, against the appellants, John B. Reagan, sheriff of Cherokee County, and Borchard, Ehrlick Co., a mercantile firm residing and doing business in Galveston County, and composed of M. Lasker, Dan Borchard, and David M. Ehrlick, in the District Court of Cherokee County, Texas, on the 25th day of November, 1891, to enjoin the said John B. Reagan, sheriff as aforesaid, from the execution of a writ of possession to lands described in their petition, which said writ was issued out of the District Court of Galveston County, and to remove cloud from title of said John H. Evans to said land. *Page 38
"Appellees' petition alleged, substantially, that said Jonn H. Evans is the owner of the said land by virtue of title deraigned as follows: On the 23d of November, 1886, W.J. Addis sold said land to Judith F. Evans, wife of Van Evans, by deed of that date, and received therefor as the consideration in part a promissory note for $157.25, due January 1, 1889, payable to said Addis, or bearer, both said note and deed retaining the vendor's lien upon said land. That said deed was filed for record in Cherokee County on the 17th day of May, 1889, and was duly recorded on May 20, 1889.
"That on the 1st day of January, 1891, the said John H. Evans, in due course of trade, for value, became the owner and holder of said note, and thereafter, on the 1st day of June, 1891, said John H. Evans obtained judgment in the District Court of said Cherokee County upon said note against Judith F. Evans and Van Evans for the amount of said note, less a credit of $50, and for interest and costs of suit, and a foreclosure of said vendor's lien on said land and an order of sale of said land for the payment of said judgment. That thereafter, by virtue of said judgment and order of sale, said land was sold by John B. Reagan, as sheriff of said county, on the 4th day of August, 1891, to the said John H. Evans, by deed of that date, which was filed for record same day and duly recorded on the day following; that said John H. Evans within thirty days thereafter was placed in possession of said land.
"Said petition further alleges the title of said Borchard, Ehrlick Co. to said land, which is deraigned as follows: That on the 24th day of January, 1890, and on the 8th day of February, 1890, the said Van Evans and Judith F. Evans made, executed, and delivered to the said Borchard, Ehrlick Co. their two several deeds of trust upon said land to secure the payment of certain sums of money then acknowledged by said Judith F. and Van Evans to be due and owing to said Borchard, Ehrlick Co.; that said deeds of trust were duly recorded in recorded of deeds of said Cherokee County on their several dates.
"That on the 14th day of August, 1891, the said Borchard, Ehrlick Co. recovered a judgment against said Van Evans and Judith F. Evans in the District Court of Galveston County, Texas, for the sums of money secured by said deeds of trust, with interest and costs, and foreclosing the lien upon said land created and secured by said deeds of trust, and ordering said land to be sold to satisfy said judgment, and that the purchaser at said sale be put in possession, etc.
"That thereafter, on the first Tuesday in October, 1891, said land was sold by said John B. Reagan, sheriff of said Cherokee County, under and by virtue of an order of sale issued out of the said District Court of said Galveston County, Texas, upon said last described judgment; and at said last mentioned sale said Borchard, Ehrlick Co. became the purchasers, and obtained from said sheriff his deed to said land, made by virtue of *Page 39 said last mentioned sale of same, said deed bearing date the 20th of October, 1891, and duly recorded in the clerk's office of Cherokee County on same day. That the plaintiffs in said petition are in possession of said land. That said Borchard, Ehrlick Co. claim the right of possession to said land by virtue of said title as aforesaid, and especially by virtue of the direction in said last named order of sale, `that the sheriff do place the purchaser of said land in possession thereof.'
"And plaintiffs in said petition pray to have the writ of injunction made perpetual; that the title to said land be adjudged to be in said John H. Evans, and the deed from the sheriff to Borchard, Ehrlick Co. be cancelled, and for all costs, etc.
"The appellants excepted generally and specially to the petition, and pleaded specially to the jurisdiction of the court. And the court having, on the 1st day of July, A.D. 1892, overruled said general and special exceptions and said plea to the jurisdiction of said court, and having rendered its judgment against the appellants Borchard, Ehrlick Co., appellants filed their motion for a new trial, and the court having overruled said motion for new trial, appellants gave notice of appeal."
The appellants' first assignment of error is, that "the court erred in overruling defendants' plea to the jurisdiction of the court, because the ground of action against appellants set up in plaintiffs' petition is an order of sale and writ of possession issued out of the District Court of Galveston County, and the relief prayed for in said petition is to perpetuate an injunction issued out of the District Court of Cherokee County, enjoining the sheriff of said Cherokee County from the execution of a writ aforesaid, issued out of the District Court of Galveston County, based upon a judgment obtained in the District Court of Galveston County in favor of appellants Borchard, Ehrlick Co. against Judith F. Evans and Van Evans, and which said writ was made returnable to said District Court of Galveston County."
The plaintiffs' petition alleged, that the defendant Reagan, sheriff of Cherokee County, at the instigation of the other defendants, Borchard, Ehrlick Co., was threatening to dispossess and eject plaintiffs Van and Judith Evans from the premises in controversy, under and by virtue of a writ issued from the District Court of Galveston County upon a judgment rendered therein on the 4th of August, A.D. 1891, in a suit wherein the said Borchard, Ehrlick Co. were plaintiffs and the said Van and Judith Evans were defendants, commanding said sheriff to sell said premises, and to place the purchasers in possession thereof; and that by virtue of said writ the said sheriff, as they were informed and believed, had sold said premises, and that at the sale the said Borchard, Ehrlick Co. became the purchasers. And petitioners further averred, that they were advised and believed that said writ was then functus officio; that it issued *Page 40 on the 11th day of August, A.D. 1891, and was made returnable within ninety days, which time had then elapsed; and they averred, that the said Reagan, instigated by his codefendants, would, they feared, execute his threat to eject them from said premises, unless restrained therefrom by a writ of injunction; that said Van and Judith Evans were in possession of the premises under a lease from their coplaintiff, John Evans; that they were occupying the same as a home, and had made their preparations so to occupy it, at least until the end of the next year, and if ejected by said sheriff that they would sustain irreparable injury. They alleged the rental value of the premises, and averred that the title, as they were advised and believed, under which they were holding possession of the premises was superior to that under which the said Borchard, Ehrlick Co. were asserting right to the property.
From these averments, if true (and in considering the rulings of the court upon the plea they must be taken as true, since the plea to the jurisdiction was not verified by affidavit, but appellants relied on the allegations of the petition for its verification), it is evident that the writ under which the sheriff was threatening to dispossess complainants had ceased by lapse of time to be of any force or effect. Such a writ has been repeatedly held to be void. Hester v. Duprey, 46 Tex. 625; Mitchell v. Ireland, 54 Tex. 301; Towns v. Harris, 13 Tex. 507 [13 Tex. 507].
If the writ prayed to be enjoined was void, the alleged threat of ejectment, if executed, would have been a trespass committed by the sheriff; and an injunction restraining an officer from committing a trespass can not be said to be an injunction enjoining the execution of the judgment upon which the writ issued, and if not, then the writ of injunction need not be returned to the court whence the order of sale and writ of possession emanated. We are of opinion, therefore, that the court did not err in holding the defendants' plea to the jurisdiction to be bad.
As the appellant's second assignment of error is not copied in his brief, and as he makes neither proposition nor statement under said assignment, we consider it as waived, and will not discuss the same.
The appellants' third assignment of error impugns the correctness of the ruling of the court upon appellants' special exceptions to appellees' first amended original petition, on these grounds: First. Because said amended petition sets up a different cause of action than that set up in original petition, and the relief prayed for in the amended petition could not have been granted under the averments of the original petition. Second. Because the petition shows upon its face that at the time the appellee John Evans became the owner of the alleged vendor's lien note, and at the time of the judgment of the District Court of Cherokee County foreclosing said lien, and under which said appellee claims title to the land in controversy, the appellants, the said Borchard, Ehrlick Co., were encumbrancers upon said land by virtue of two deeds of trust, mentioned *Page 41 in said petition, and as such encumbrancers, had the equity of redemption of said land, and that they were not parties to said suit in which said vendor's lien was foreclosed; and that said petition neither discloses nor alleges any fact or facts which would bind appellants by said judgment or the sale made thereunder.
As to the first of these two grounds of objection urged to the judgment of the court overruling appellants' special exception to the amended petition, it is sufficient, we think, to say, that the court had jurisdiction of the parties and of the subject matter of the suit, and the petition presented a good cause of action; and even if the cause of action set out in the amended petition was another and a different one to that presented in the original petition, it was competent for the court to permit the suit to proceed under such terms and conditions as in its judgment were proper; and if the appellants were surprised by the averments of the amended petition, or for any other sufficient cause they desired a postponement or continuance of the cause, they should have made application to the court for such postponement or continuance; and not having done so, they can not now be heard to complain of the judgment of the court in overruling their exception.
The second ground of objection is based upon the assumption, that as the deeds of trust mentioned in plaintiffs' petition showed that appellants Borchard, Ehrlick Co. were encumbrancers before the purchase of the vendor's lien note, and before the institution of his suit by the said appellee John Evans for the foreclosure of said lien, the said appellants were necessary parties to said suit, in order to convey title to appellee John Evans under the decree of foreclosure. The vendor's lien was expressly retained in the deed conveying the land from J. Addis to Edith Evans, under whom both appellants and appellee John Evans claim title.
Had Addis brought suit on the note, it is well settled by the decisions of the Supreme Court of this State, that appellants would not have been necessary parties. Ufford v. Wells, 52 Tex. 619 [52 Tex. 619], and authorities there cited; Silberberg v. Pearson,75 Tex. 288. And as Addis, the assignor of the note, held the superior legal title to the land in trust for the benefit of his assignee, we think the rule announced in the cases cited, supra, is as applicable to this case as if the vendor, Addis, were the plaintiff, instead of his assignee, John Evans.
But if we are mistaken in this, unless Evans knew of the subsequent lien acquired by the mortgagees, Borchard, Ehrlick Co., then he was not required to make them parties to his suit to foreclose the vendor's lien. Webb v. Maxan, 11 Tex. 340. And there is nothing in the record which shows, or would authorize us to conclude, that Evans, the plaintiff, knew of the mortgages executed by the vendee of the land to Borchard, Ehrlick Co. at the time he instituted his suit. The mortgagees were not in possession of the premises. The registration of the mortgages *Page 42 was not notice to plaintiff. He was not asserting or claiming any rights under the mortgagor. The registration of the vendor's deed was notice to the subsequent encumbrancers of the vendor's lien, but the registration of the mortgages executed by the vendee was not notice of the mortgagee's lien, to either the vendor or to the vendor's assignee.
Our conclusion is, therefore, that the mortgagees were not necessary parties to the suit for foreclosing the vendor's lien, and that the judgment must be affirmed. But it is the opinion of the majority of the court, that the mortgagees, the appellants here, are not precluded by the judgment of the lower court from yet asserting any equities against the land secured to them by their mortgages, a proposition to which the writer of this opinion is not prepared to give his assent.
The judgment therefore is affirmed without prejudice to appellants. And if the land be of greater value than the amount of the plaintiff Evans' debt, such excess of value, or so much thereof as may be necessary, may be subjected to the payment of appellants' mortgage debts.
Affirmed.