
    CANALES et ux. v. CANALES et al.
    (No. 5842.)
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 6, 1916.
    Rehearing Denied Jan. 10, 1917.)
    Homestead @=>209% — Sale under Execution — Temporary Injunction.
    In a suit to restrain sale under execution of an alleged homestead, the plaintiffs were entitled to a temporary injunction, restraining a sale of the property, to prevent a cloud upon the title, until the cause could be tried on its merits.
    [Ed. Note. — For other cases, see Homestead, Dec. Dig. @=3209%.]
    Appeal from District Court, Jim Wells County; V. W. Taylor, Judge.
    Suit for injunction by Fructuoso Canales and wife against Andres Canales and others. From an interlocutory order refusing a temporary injunction, plaintiffs appeal.
    Reversed, and temporary injunction granted.
    S. H. Woods, of Alice, for appellants. Ca-nales & Dancy, of Brownsville, and J. F. Carl, P. H. Swearingen, Jr., and Geo. G. Clifton, all of San Antonio, for appellees.
   FLY, O. J.

This is a suit instituted by appellants to restrain the sale under execution of a certain tract of land alleged to be the homestead of appellants, and consequently exempt from sale under execution. There was a preliminary hearing of the cause, and this appeal is perfected from an interlocutory order of the court refusing a temporary injunction.

The evidence was 'conflicting as to whether the land in dispute was a homestead or had been abandoned by appellants, but the question was one of fact, and forms a reasonable ground for the belief that appellants will probably sustain great harm if this property is sold under execution, and that nothing but a short delay will be encountered by-appellees. We think, therefore, that the court should have granted the temporary writ of injunction and restrained a sale of the properly until tJie cause could be tried on its merits. Friedlander v. Ehrenworth, 58 Tex. 350; Daniels v. Daniels, 127 S. W. 569.

Even if the old rule of refusing an injunction,- when the applicant has an adequate legal remedy, were in force in Texas, the right to an injunction to restrain the sale of a homestead, under execution, would exist. The sale would cast a cloud upon the title to the property, and the owners would have the right to an injunction to prevent such cloud. Joyce on Injunctions, §§ 708, 709; Van Ratcliff v. Call, 72 Tex. 491, 10 S. W. 578; Mann v. Wallis, 75 Tex. 611, 12 S. W. 1123; Leachman v. Capps, 89 Tex. 690, 36 S. W. 250; Wylde v. Capps, 27 Tex. Civ. App. 112, 65 S. W. 648; Barr v. Simpson, 54 Tex. Civ. App. 105, 117 S. W. 1041.

Appellants have a case which should be determined, if they so desire, by a jury, on its merits, and they should not have a cloud placed on their title before a final trial, which they will be compelled to have removed.

The judgment of the trial court is reversed, and a temporary writ of injunction is granted, restraining the sale of the land described in the petition until the cause is finally disposed of on its merits. 
      cS=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     