The petition in this case shows upon its face that the defendant is but a formal party, having no interest in the subject-matter of the litigation, and that the plaintiffs in the judgment and execution are the parties in actual interest. “The execution creditor is a proper and necessary party to a.bill to stay proceedings upon an execution, instead of the officer.” Hilliard on Injunctions, sec. 139; Bean v. Blanton, 3 Ired. Ch., 59.
The officer is usually made a party defendant in injunction suits, although he has no interest. It is not necessary to determine whether or not he is an indispensable party, but certairfly the plaintiff in the execution is a necessary party, and the defendant a formal one. There is no rule of law more universal than that which requires all persons having an interest to be affected by the result of the suit, to be made parties to it. Denison v. League, 16 Tex., 409. And it is an elementary rule that no person should be made a party who has no interest in the suit, and against whom, if brought to a hearing, no decree can be had. Story’s Eq. Pl., sec. 231.
The petition in this case seeks to conclude, without a hearing, the interests of the only persons really interested to contest it; and the decree of the court rendered in pursuance of the prayer of the bill has determined that no writ shall issue on their judgment henceforth forever, to be enforced against the property in question. Such a result ■ does not concern the defendant in this suit, but it materially affects the only persons who are concerned in the satisfaction of the judgment. See Story’s Eq. Pl., sec. 83; Crowne v. Blount, 2 Russ. & M., 83. Upon an application for a mandamus, it is the duty of the plaintiff to sum*353mon, by proper process, all parties who are interested, if known, to come in and defend their interests. Smith v. Power, 2 Tex., 57. "Where, in such case, “ the plaintiff would not ask to have such parties made, or refused to have them. made, when it was ruled that they were necessary to any judicial action on their rights, the court was right in dismissing the petition.” Watkins v. Kerchain, 10 Tex., 381. The principle is not less applicable to suits of injunction.
The defendant’s motion to dissolve the injunction on the first ground ought to have been sustained, with leave granted the plaintiff to amend his petition by making proper parties, and failing to do so, the bill should then have been dismissed.
The petition was otherwise defective; it alleged no facts entitling the plaintiff to the remedy by injunction. “ The clear weight of authority,” says Mr. High in his work on injunctions, “ is in favor of the proposition that, in the absence of fraud, or gross injustice and irremediable injury, courts of equity will not entertain jurisdiction in restraint of judicial sales under executions against third parties having no title to the property sold.” Sec. 266. This principle has been distinctly recognized and acted upon by our supreme court. Henderson v. Morrill, 12 Tex., 1; Carlin v. Hudson, id., 202.
The remedy by injunction to prevent a cloud upon the title is an equally well recognized head of equitable relief. The petition in this case fails to show facts which entitle the plaintiff to enjoin the sale <yi that ground. A case lately considered and disposed of by us (Roe v. Dailey, from Dallas) presented a state of facts which properly entitled the petitioner to enjoin a sheriff’s sale to prevent a cloud upon his title. We stated, in our opinion in that case, the rule of law, as we understand it to be, which determines what character of title it is that is regarded as a cloud upon a valid title, to prevent which an injunction will be granted. “ In the exercise of the jurisdiction for the prevention of cloud upon title, a distinction is drawn between cases where the invalidity or illegality charged as the cloud is shown.by evi*354dence dehors the record, and where it appears upon the proceedings themselves. And while in the former case the relief is freely granted, in the latter, courts of equity will not interpose.” “ Where, therefore, the cloud which it is sought to remove can only be shown to be a good title by leaving that of complainant out of the question, an injunction will be refused.” High on Inj., sec.. 272. The title which the plaintiff in this case fears will becloud his, so far as the petition discloses, appears on the face of the record to be wholly invalid, and no evidence dehors the record is required to exhibit that fact; and a title derived through the second sale by the sheriff of the same interest in the land as that which was acquired by plaintiff under the first sale, could only appear to be a good title by leaving the plaintiff’s out of the question. . The plaintiff alleges no fact, beyond this bare comparison of titles, to show that he is entitled to equitable relief upon grounds showing that he is remediless at law.
There was no trial upon the facts of th.e case, and the judgment of the court has no other support than the petition, which, as has been seen, affords no basis for a judgment for the plaintiff, if the proper parties even had been before the court. It is not necessary for us to determine whether the answer' of the defendant was amenable to the plaintiff’s exceptions or not. Whether the equitable right of Thomas Wardlovv, arising under his agreement with the plaintiff, to refund to the latter the purchase price paid for the lan^, and to become again invested with the title to the land, is the subject of levy and sale urtder execution, is a question which requires consideration. In the case of Daugherty v. Cox, 13 Tex., 212, it was said, in effect, by Justice Lipscomb, that, although’ it is in a certain sense correct to say that an equitable interest in property may be levied on and sold under execution; that whilst it may be that an equitable claim to title or a resulting trust may sometimes be subject to sale by execution, yet every equity may not be subject to"sale. “If, for instance,” he remarked, “a purchaser had paid for the land and taken a bond for title, the land *355would be subject to execution against the purchaser, because there would be nothing uncertain, nothing to be done on the part of the purchaser, nor on the part of the vendor, but to make the title. If, however, other things were to be done by the parties, . . . until these things were done there would be no. such equity ... as would make it subject to the levy of an execution against the holder of such equity.” It seems at least questionable whether the equity set up by the answer is such as might be sold under the execution, and if it is not, the court did not err in sustaining the plaintiff’s exceptions- to the answer. We will not, however, determine that question, as to do so cannot upon another trial serve any beneficial purpose, unless the plaintiff shall be able, by amendment of his petition, to present a case essentially different from that set out in his petition.
[Opinion delivered May 31, 1880.]We are of the opinion that there is manifest error in the judgment, for which it must be reversed.
Beversed and remanded.