Herman v. Forrest

PANNILL, C. J.

The object of the instant suit was to prevent the sale of certain lands by a trustee under a deed of trust executed by appellant. The petition presented two distinct grounds upon which the writ was sought. The first was that certain payments had been made on the debt which was secured by the deed of trust, but that no credit on the note evidencing the debt had been given and that the trustee would sell the property for the debt without allowing such credit. The second was that the creditor had procured the execution of the deed of trust upon the representation that if appellant would execute it the creditor would grant -an extension of time of one year at the maturity of the note. There was no allegation that any request had been made for such extension and refused, nor was any averment made as to a tender of the amount admitted to be due. The petition was duly verified; the creditor and the trustee answered, the former under oath, and’ pleaded, among other things, a categorical denial of the matters of fact above referred to. The petition and answer thereto were duly presented to Hon. Gordon McGuire, judge of the 106th district, who, after considering the petition and the sworn answer thereto, entered an order refusing the injunction prayed for, from which this appeal is prosecuted.

Appellees urge that the second ground of the petition as stated above states no cause of action authorizing the granting of an injunction restraining the sale of the land. ,- Hendrick v. Chase (Tex. Civ. App.) 186 S. W. 277 , 22 C. J. p. 1095, § 1449, and numerous other authorities are cited which declare the rule to be that it cannot be shown that the time for payment of a negotiable instrument as agreed upon by the parties is different from the date of maturity as appearing in the instrument, or that there was an agreement at the time of the making of the bill that it would be renewed at maturity.

It is not necessary to decide whether a cause of action could be predicated upon the facts as stated in the second ground so as to bring it within some of the numerous exceptions to the parol evidence rule for the reason that allegations were wholly lacking showing any request for extension or refusal thereof. Certainly, if the second ground was relied upon to prevent the sale of the property, appellant could not invoke it without a showing that he had requested the extension agreed upon and that it had been refused.

As to the first ground it may be said that in some cases equity will restrain a sale under a mortgage or deed of trust where there is a dispute as to the amount due, but it has been held in such cases that there must *625 toe a tender of ttoe amount admitted to toe due. 27 C. J. pp. 1456, 1457.

Ttoe granting of a writ of injunction is addressed to ttoe sound discretion of ttoe trial court, and tois action in refusing to grant sucto a writ will be revised only where a clear abuse of that discretion is shown. Davidson v. Wells (Tex. Civ. App.) 233 S. W. 518 ; Pavey v. McFarland (Tex. Civ. App.) 234 S. W. 591 ; Fry v. Jackson (Tex. Civ. App.) 264 S. W. 612 .

In ttoe case at bar, appellant alleged that there toad been an agreeinent for an extension of time, but did not allege any request for sucto extension and its refusal; thát a payment toad been made and no credit toad been given on ttoe debt; there was no offer in tois petition to pay the amount due. Ttoe defendant’s answer under oath .denied these allegations and alleged a. state of facts showing that no sucto payment toad been made on the indebtedness as claimed by ttoe plaintiff and that ttoe particular amount which appellant alleged toe toad paid was paid by ttoe appellant to ttoe creditor on another and different obligation and duly credited on ttoe latter. No evidence was offered by appellant seeking to sustain ttoe allegations of tois petition, but ttoe trial was toad upon ttoe petition and the answer as stated. Under these circumstances, ttoe granting or refusing of ttoe writ was clearly within ttoe discretion of ttoe trial court, and we cannot say that any abuse of that discretion was shown.

Therefore ttoe judgment of ttoe trial court will be affirmed, and it is so ordered.