did not err in refusing to grant appellant's but the amount was not paid by the comprayer for a temporary injunction. pany, and Johnson prosecuted his forcible Appellant cites the cases of Texas Land Co. | detainer suit to judgment, and was about to v. Turman, 53 Tex. 619, Johnson v. Railway Co., 141 U. S. 602, 12 Sup. Ct. 124, 35 L. Ed. 875, Summer v. Crawford, 91 Tex. 129, 41 S. W. 994, and Chancey v. Allison, 48 Tex. Civ. App. 441, 107 S. W. 605, in support of his contention that the facts established on the hearing required the trial judge to grant the injunction. procure the issuance of a writ of restitution thereon. The plaintiff railway company then brought suit for injunction and tendered into court the full amount due Johnson according to the agreement before mentioned, with interest thereon. The trial court adjudged that, upon the payment by plaintiff of an additional sum of $1,000 to cover expenses inThe facts of this case distinguish it from curred by Johnson in preparing to take poseach of the cases cited. The Turman Case session of the road and the payment of all goes no further than to hold that one who cost of the forcible detainer proceedings, had purchased at execution sale the title Johnson should be perpetually enjoined from of the owner to real estate pending a suit of executing the judgment in his favor for the forcible entry and detainer brought by the possession of the road. This judgment was owner against his tenant could, the tenant affirmed by the Supreme Court on the ground having attorned to the purchaser, protect that Johnson's right to the possession of the the possession of the tenant by injunction un-road was only for the purpose of securing til the question of title, which could not have the amount due him for constructing it; been adjudicated in the forcible entry and detainer proceedings, could be determined. But the right to injunction recognized in that case was based upon allegations of the insolvency of the defendant. The substance of the holding is thus stated in the opinion: "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." The trial court in that case dissolved the temporary injunction upon the coming in of the answer denying under oath the allegations of the petition, and this ruling was affirmed by the Supreme Court. and this amount, as fixed by the agreement of the parties, being tendered by plaintiff and awarded him by the judgment, together with the costs and expenses incurred by him in the proceedings in the forcible detainer, he had no right to the possession of the road, and therefore should not be allowed to enforce the judgment in the forcible detainer suit. The judgment appealed from in that case was a judgment upon final hearing, and finally disposed of all the issues between the parties. We think it clear that this decision is not authority for the issuance of a preliminary injunction in the present case. The injunction in the Chancey-Allison Case was granted to protect the property in controversy from injury and waste caused by the acts of the defendant. We think the difference between that case and the case presented by this record is clear. While the plaintiff in the Chancey Case obtained his possession by entering upon the premises and breaking the lock to the house situate thereon, the premises were in fact unoccupied In the Johnson Case the suit was brought at the time he entered. If, however, the by the railway company against the defend- manner of his entry be regarded as a forcible ant Johnson to restrain him from attempt-invasion of defendant's prior possession, that ing to take possession of a portion of plain-fact would not deprive the plaintiff, who tiff's railroad under a writ of restitution showed a prima facie title and claimed to be issued in a suit of forcible entry and de- the owner, of the right to protect the proptainer brought by Johnson against the rail-erty from the wrongful acts of the defendway company. The facts in the case were ant in cutting the fences thereon and thereby that Johnson had constructed a portion of injuring and causing waste to said property. the railroad under a contract with the rail- [2] The evidence in this case is sufficient way company, by which he was entitled to to sustain the finding that appellant's tenant hold possession of the railroad so constructed Kresse, with the knowledge and consent of by him until he was paid the contract price appellant, forcibly invaded the possession of for such construction. The company failed defendant Bratton, who was holding under a to pay him for the construction of the road lease from his codefendants, who claimed to according to its contract, and after the road be the owners of the property. To regain was finished took forcible possession thereof the possession thus forcibly wrested from and began to operate its trains thereon. him, Bratton did not pursue the course folThereupon Johnson brought an action of for- lowed by Chancey, in the case above cited, cible detainer to regain possession of the and commit or threaten any act of violence, road. Pending the trial of this case John- but appealed to a court of law and obtained son and the railway company agreed in writ- a judgment restoring to him the possession validity of this judgment is not questioned. | chancellor, more injury would likely result In these circumstances appellee's right to from refusing than from granting the writ. enforce this judgment of restitution should It follows from these conclusions that the not be prevented by the issuance of a pre-judgment of the court below should be afliminary injunction, in the absence of a firmed; and it has been so ordered. showing that the enforcement of the judgment would work irreparable injury to appellant, or at least greater injury to him than defendants would suffer by being restrained from enforcing said judgment. This rule of "balance of convenience" is thus stated by Mr. High in his work on Injunctions (2d Ed.) par. 13: "Where the legal right is not sufficiently clear to enable a court of equity to form an opinion, it will generally be governed in deciding an application for a preliminary injunction by considerations of the relative convenience and inconvenience which may result to the parties from granting or withholding the writ. And where, upon balancing each consideration, it is apparent that the act complained of is likely to result in irreparable injury to complainant, and the balance of inconvenience preponderates in his favor, the injunction will be granted. But where, upon the other hand, it appears that greater danger is likely to result from granting than from withholding the relief, or where the inconvenience seems to be equally divided as between the parties, the injunction will be refused and the parties left as they are until the legal right can be determined at law. Where a clear case of irreparable injury is shown as likely to result to complainant unless the injunction is granted, and it does not appear that the issuing of the writ will work any such injury to defendants, the relief will be granted." Affirmed. On Motion for Rehearing. [3] Upon a re-examination of the affidavits contained in the record, we have reached the conclusion that we erred in our former opinion herein in holding that the evidence sustained the finding that appellee Ira Bratton, in whose favor the judgment in the suit of forcible entry and detainer was rendered, and who alone can procure the enforcement of said judgment and could be held responsible for the damages plaintiff would suffer thereby, is solvent in the sense that he could be made to respond to the damages plaintiff would likely suffer by the enforcement of said judgment. The affidavits as to his solvency only show that his "net worth" is $300. Giving the fullest effect to these affidavits, they only justify the conclusion that he has property over and above his indebtedness of the value of $300. It is not shown of what the property consists, nor whether it is exempt from forced sale. The verified petition shows that the rental value of the premises is $500 per year, and if, as a matter of fact, defendant Bratton has property subject to execution of the value of $300 plaintiff, pending a final trial of his suit, which in all reasonable probability could not be had within a year, would, if he established his title to the property, lose at least a considerable portion of the rents due The allegation of insolvency of the defend- therefor. On the other hand, by requiring ants was expressly denied by the defendants, plaintiff to give a bond in the sum of $1,000, and the trial court, upon the showing made, the defendant Bratton can be protected from was fully justified in finding against said al- any loss that he is likely to sustain by an inlegation. This being the fact, it might work junction restraining the execution of the as great an injury to defendants to deny judgment in the forcible entry and detainer them the right to enforce their legal remedy suit. Such being the facts under the rule of to regain possession of property, which had "balance of convenience" followed in our been forcibly taken from them by the plain- former opinion, plaintiff is entitled to have tiff, as the withholding of the injunction the enforcement by said defendant of a writ would cause plaintiff, and in these circum- of restitution in the forcible entry and destances, under the rule above stated, the in-tainer suit enjoined pending an adjudication junction should be denied. of the question of title, unless the fact that plaintiff wrongfully entered upon the premises, which at the time of such entry was in the possession of defendant Bratton, will deny him the right to the equitable remedy of injunction. It may be conceded that our injunction statute has liberalized the rule of equity that forbids the issuance of an injunction in any case in which the applicant therefor has an adequate remedy at law, and as said by our Supreme Court in the case of Summer v. [4] We do not think the equitable rule Crawford, supra: "In courts administering that "he who seeks equity must come with both law and equity, * the rules clean hands" requires that, in every case in denying an injunction, when there is a rem- which a plaintiff has been guilty of wrong, edy at law, should not be applied as rigidly he must be denied any protection by a court as at common law, where the issuance of the of equity. It seems to us that the modern writ in equity was, to a certain extent, an rule of "balance of convenience" stated in our invasion of the jurisdiction of another tri- former opinion, and which has been recogbunal." But the issuance of a preliminary |nized and enforced by the higher courts of injunction is an equitable, as distinguished this state in injunction proceedings, when in from a legal, remedy, and such writ should a particular case it conflicts with the rule the rule which denies any protection to one | he take nothing by his suit, from which he who has himself done wrong. This is evi- has appealed. dently the spirit of the rule of "balance of convenience" and is more in harmony with the ever-widening principles of equity jurisprudence. We think the cases cited and discussed in our former opinion support this application of the rule to the facts of the instant case. The only issue presented is whether or not plaintiff was entitled to an injunction to restrain defendant from allowing his chickens and turkeys to run at large. The question is one of first impression in this state. The reason, we suppose, is that such fowls from time immemorial have been permitted to run at large in this state, and no recent law to prevent their running at large has been made. However such custom may have been annoying in some instances by chickens of one neighbor trespassing upon the premises of another, it has never reached such magnitude as to demand the attention of the Legislature, which only has the right to pass laws in relation thereto. It has seen proper to pass laws regulating the running at large of domestic animals, but it has never seen proper to include fowls in its enactment. It follows from these conclusions that the motion for rehearing should be granted, and our former judgment herein set aside; and it has been so ordered. It is further ordered that the judgment of the court below, denying appellant an injunction against appellee Bratton, be reversed, and judgment here rendered; that upon appellant's giving a bond in the sum of $1,000, payable and conditioned as required by law and approved by the clerk of the trial court, a writ of injunction shall issue from said court restraining appellee Ira Bratton from enforcing or attempting to enforce, pending the final trial of this suit, the judgment in the forcible en-preme Court ruled that there was nothing in try and detainer suit described in plaintiff's petition. That portion of the judgment refusing a mandatory injunction ousting appellee Bratton from that portion of the premises in controversy now occupied by him is affirmed. COFFMAN v. MARTIN. (No. 7140.) (Court of Civil Appeals of Texas. Dallas. May 9, 1914.) INJUNCTION (§ 9*)-TRESPASSING FOWLS. An injunction to restrain a person from allowing his chickens and turkeys to run at large will not issue, in absence of a statute prohibiting fowls from running at large. [Ed. Note.-For other cases, see Injunction, Cent. Dig. § 8; Dec. Dig. § 9.*] Appeal from District Court, Collin County; F. E. Wilcox, Special Judge. Action by G. C. Coffman against Gene Martin. From a judgment granting insufficient relief, plaintiff appeals. Affirmed. R. C. Merritt and H. C. Miller, both of McKinney, for appellant. Doyle & Brown, of McKinney, for appellee. Before the Legislature regulated the running at large of domestic animals, our Su the law of this state to prohibit such animals from running at large, and we do not understand why such holding should not apply to domestic fowls. Investment & Agency Co. v. McClelland, 86 Tex. 179, 23 S. W. 576, 22 L. R. A. 105; Wilson v. Caffall, 83 S. W. 726; Kimple v. Schafer (Iowa) 143 N. W. 505. There was no lawful fence around appellant's premises. Investment Co. v. McClelland, supra, was a case where cattle were running at large. Justice Gaines said: "It is the right of every owner of domestic animals in this state, not known to be diseased, vicious, or 'breachy,' to allow them to run at large, and this without reference to the size or class of such animals kept by others in the same neighborhood." As to the question of damage, there was no proof of value; and the judgment is affirmed. VINEYARD et al. v. HEARD et al.† (No. 5239.) (Court of Civil Appeals of Texas. San Antonio. April 8, 1914. On Motion for Rehearing, May 13, 1914.) 1. EXECUTORS AND ADMINISTRATORS (§ 360*) -SALE BY ADMINISTRATOR-POSTPONEMENT OF SALE. for the sale, and so on from time to time, unadministrator's sale was valid though made in til the property is sold, an order postponing an vacation. RAINEY, C. J. Appellant and appellee owned adjoining premises in the edge of the Under Acts 12th Leg. c. 81, § 250, providtown of McKinney. Coffman was growing realty, ordered to be sold, at the time specified ing that if the administrator shall fail to sell alfalfa and Martin was raising chickens and in the order, he shall report the facts to the turkeys for profit. Martin allowed his chick-court or judge, who may appoint another day ens and turkeys to trespass upon the premises of Coffman and injured his growing crop of alfalfa. Coffman brought suit for an injunction and for damages against Martin to restrain him from allowing his fowls from trespassing and injuring Coffman's alA temporary writ of injunction was granted, but upon hearing it was dissolved, and judgment rendered against Coffman that *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes falfa. [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 1481-1483; Dec. Dig. § 360.*] 2. DEEDS (§ 13*)-GRANTEE. The grantees in a deed must be in existence when it is executed, but a deed to the heirs of a dead person is valid if the grantees the sale. can be identified, though a deed to the heirs of [istrator are estopped to deny the validity of a living person, without specifying their names, is invalid, especially where the heirs are yet unborn. [Ed. Note.-For other cases, see Deeds, Cent. Dig. §§ 278-291, 372-374; Dec. Dig. § 105.*]| 4. DEEDS (§ 143*)-RESERVATIONS. A provision in a deed to grantor's son, reserving to grantor the right to control the land as "guardian of said estate for the benefit" of his son, gave grantor no more rights over the property than he had as the natural guardian of his son, and the fee-simple title passed to the son free from any trust. [Ed. Note.-For other cases, see Deeds, Cent. Dig. §§ 453-455, 465-468; Dec. Dig. § 143.*] 5. JUDGMENT (§ 707*)-PERSONS BOUND. Minors interested in the land, who were not parties to a partition proceeding, were not bound by the decree. [Ed. Note.-For other cases, see Judgment, Cent. Dig. § 1230; Dec. Dig. § 707.*] 6. GUARDIAN AND WARD (§ 4*)-RIGHTS OF PARENT DISPOSITION OF PROPERTY. A parent cannot appoint himself the guardian of his minor child's estate and dispose of the property without the sanction of a court; his guardianship by nature not giving him such power. [Ed. Note. For other cases, see Guardian and Ward, Cent. Dig. §§ 4, 5; Dec. Dig. § 4.*] 7. PARTITION (§ 46*)-PARTIES. All persons interested in the estate must be parties to a partition suit. [Ed. Note. For other cases, see Partition, Cent. Dig. § 114; Dec. Dig. § 46.*] 8. GUARDIAN AND WARD (§ 103*)-SALE OF WARD'S LANDS-CONFIRMATION. Where a father sold land which he had previously conveyed to his son, he cannot validate the sale by six years later applying for guardianship on the son's estate and for confirmation of the sale as an act of guardianship; there being no order of sale made. [Ed. Note.-For other cases, see Guardian and Ward, Cent. Dig. 88 378-381, 391; Dec. Dig. § 103.*] [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 1539-1542; Dec. Dig. § 376.*] 12. HUSBAND AND WIFE (§ 81*) MARRIED A married woman would not be bound by covenants of warranty contained in a deed by her. [Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. 88 331-335; Dec. Dig. § 81.*] On Motion for Rehearing. 13. Judgment (§ 710*)—PERSONS BOUND. A subsequent judgment, involving the same land as that affected by a prior judgment in favor of one who was not a party to the action in which the subsequent judgment was rendered, would not affect such person or the prior judgment in her favor. [Ed. Note. For other cases, see Judgment, Cent. Dig. § 1230; Dec. Dig. § 710.*] Appeal from District Court, Aransas County; F. G. Chambliss, Judge. Action by Lillian Vineyard and others against Fannie W. Heard and others, in which Anna W. Vineyard and another intervened and adopted plaintiffs' pleadings. From a judgment as stated, plaintiffs appeal. Reversed in part and rendered for plaintiffs and affirmed in other respects. Fiset, McClendon & Shelley, of Austin, for appellants. E. A. Stevens, of Rockport, and Wilson, Dabney & King, of Houston, for appellees. FLY, C. J. This is an action of trespass to try title, instituted by Lillian Vineyard, J. M. Thornton, Mattie B. Iglehart and husband, and K. J. Edwards, against Fannie W. Heard and husband, W. J. J. Heard, and Rob Johnson, the land being a portion of what is known as "Lamar Peninsula." An amendment was filed by which J. M. Brundrett was made a party defendant, and judgment of partition prayed for as against him. Heard and Johnson answered by general and special exceptions, pleaded not guilty, and answered that since the suit was instituted Lillian Vineyard had executed a deed to her mother, Anna W. Vineyard, and her brother S. H. Vineyard, conveying to them all her interest in the land sued for. Anna W. Vineyard and S. H. Vineyard intervened in the suit, adopting as their own the pleadings filed by the plaintiffs. Brundrett answered his general denial and a special plea that the land in A sale of land by an administrator of a wife, who was also executor of the husband, question, so far as it included lands set apart was valid, and conveyed the interest of both to James B. Wells, Sr., in a partition of the the husband and wife, where part of the money Lamar tract, was acquired by him with the received from the sale was used in paying com- community funds of himself and deceased munity debts and the children accepted the pro-wife, and that her children had an interest 9. JUDGMENT (§ 472*)-COLLATERAL ATTACK. [Ed. Note. For other cases, see Judgment, ceeds of the property. [Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. §§ 1573-1582; Dec. Dig. 388.*] 11. EXECUTORS AND ADMINISTRATORS (§ 376*) SALE OF LAND-VALIDITY-ESTOPPEL TO DENY. therein, and he prayed that they be made parties to the suit. The children intervened, setting up their interest in the land. James B. Wells filed a plea, claiming an interest in the land through purchase by himself and Heirs who received the full benefit of the W. J. J. Heard of the interest of Mrs. Hynes, proceeds of a sale of property by an admin- a daughter of Hannah Brundrett, deceased. and Mrs. O'Connor was appointed executrix. The following items appeared in the appraisement of the estate: "2/8 Lamar property, undivided share of about 12,000 acres of land, $1,500.00. About 4/8 of Lamar property sold to Colt for $18,000.00, but not paid, and of which 4/8 Capt. Byrne claims 3/8 thereof, $2,250.00." Plaintiffs and Anna W. and S. H. Vineyard duary legatees and devisees, and Mrs J. P. filed a supplemental petition in which it was O'Connor and Mrs. Ann E. Byrne were made alleged that, if the heirs of Hannah Brun-executrices. Mrs. Byrne refused to qualify drett ever had any interest in the land it was only an equitable one, and had been lost by laches; that the same had been recovered and held in trust for them by J. M. Brundrett through a judgment rendered in his favor for 13/24 of the land in a cause styled Lillian Vineyard v. J. M. Brundrett, and if said heirs of Mrs. Brundrett have any interest, it should be taken out of the land acquired by The Byrne estate was partially administerJ. M. Brundrett in said suit. The cause was ed by Mrs. O'Connor, and in 1867 she was retried by the court, without a jury, and judg- moved, and J. W. Vineyard was appointed ment was rendered that the plaintiffs and and qualified as administrator de bonis non. interveners, A. W. and S. H. Vineyard, re- Afterwards he was regularly authorized to cover an 11/24 interest in certain lands, as sell "3,375 acres of the Lamar property, unto which parties had filed disclaimers, and divided, more or less, originally in the name that they take nothing as against any of the of Isaac E. Robertson, M. Hunt, Wm. Lewis other parties, but the lands claimed by the and James W. Byrne, the whole said to be parties who did not disclaim were allotted to 13,500 acres and held in common with Wm. them as follows: To Mrs. Fannie W. Heard | G. Hale and Ebenezer Allen and including all 11/24, to John M. Brundrett 13/24, and to unsold town lots in the town of Lamar in ReJames B. Wells and W. J. J. Heard Mrs. fugio county. An interest of 3/8 in a conHynes' interest, being 1/16 of 13/24 of the tract of sale with Col. Samuel Colt, amountland allotted to the heirs of Mrs. Brundrett. ing to about 2,5314 acres of land, more or The judgment was amended so as to specify less, and claim against heirs for $6,750.00 rethat J. M. Brundrett should receive one-half sulting therefrom, being for half of the unof the 13/24 set apart to him in the original sold property in the town of Lamar, the said judgment, and that each of the heirs of Han- claim held in common with W. G. Hale and nah Brundrett should receive 1/16 of the Ebenezer Allen, belonging to said estate." 13/24 of the land. The cause was held upon The sale was reported as made to S. C. Vinethe docket for the purpose of making parti- yard and confirmed on May 28, 1872. The tion of all the lands described in the judg-estate was closed in 1877. ment. The Lamar Peninsula is a famous tract of land, and has been the cause of much litigious strife. Vineyard v. O'Connor, 90 Tex. 59, 36 S. W. 424; O'Connor v. Vineyard, 91 Tex. 488, 44 S. W. 485; Vineyard v. Brundrett, 17 Tex. Civ. App. 147, 42 S. W. 232. J. W. Byrne, the grandfather of Anna W. Vineyard, is the common source of title, having at one time owned the whole of the peninsula. He conveyed an undivided one-half interest in the land to William G. Hale and Ebenezer Allen, and it was agreed by the parties that at the time of his death J. W. Byrne owned 27/144, Allen & Hale, 27/144, Samuel Colt, or his heirs, 78/144 and E. Williams, 12/144; that all the interest of Allen passed from Mrs. Josephine H. Allen to James B. Wells, deceased, on December 12, 1873; that the interest of E. Williams passed to Marcy and Huntington, the latter being a party to a suit for partition in the district court of Aransas county, Tex., styled Hale et al. v. Vineyard et al.; that the heirs of Hale were parties to that suit, and that the deed from Eliza Colt et al. to Allen, Hale & Vineyard, on August 8, 1870, passed to them all the right, title, and interest which Samuel Colt, formerly of Hartford, Conn., had in and to the property described in the deed. J. W. Byrne died prior to May, 1862, and left a will. That will was probated in October, 1862, in which Ann Willie Byrne and her S: C. Vineyard executed the following deed: "The State of Texas, County of Aransas. Know all men by these presents that I, Samuel C. Vineyard of the state of Texas and county of Aransas, for the sum of $1.00 (and out of affection) for my son, Samuel Harvey Vineyard, do hereby grant, release and convey, to have and to hold forever, all my right, title and interest in the estate of James W. Byrne, purchased by me at administrator's sale in behalf of my son, Samuel Harvey Vineyard and heirs of S. C. Vineyard and Anna W. Vineyard. Hereby reserving the right to control as guardian said estate for the benefit of S. H. Vineyard and heirs of S. C. Vineyard and Anna W. Vineyard. And I, the said Samuel C. Vineyard, for and in consideration of the sum of $1.00 to me in hand paid, do hereby bind myself, by these presents to warrant, defend and protect unto the said Samuel H. Vineyard and heirs of S. C. Vineyard, all the possessions hereunto conveyed this 8th day of October 1873, A. D. In testimony whereof I have hereunto signed my name and affixed my scrawl for seal, on this 8th day of October A. D. 1873. S. C. Vineyard. Witness: Eustace Hatch." The validity of that deed was sustained by the Supreme Court. Vineyard v. O'Connor, 90 Tex. 59, 36 S. W. 424. On November 23, 1888, Harvey S. Vineyard conveyed to his sister, Lillian Vineyard, all the property conveyed to him in the foregoing deed by his father. |