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INTERNATIONAL FIRE INSURANCE CO. v. BLACK
dence strongly tending to show that Little As we construe the answer, it was merely john's agency for plaintiff in error had a denial by plaintiff in error that Little terminated at the time he issued the policy john was its agent at all. Defendant in ersued upon, the trial court had a right to be- ror overcame that defense by proof showing lieve Littlejohn when, as a witness, he tes- that Littlejohn was its agent to issue poltified that his agency had not then terminat-icies at the time he issued the one in quesed. As his testimony was sufficient to sup- tion. Had plaintiff in error defended on port the finding involved in the judgment the ground that Littlejohn exceeded his auto the contrary of the insistence of plain- thority as its agent when, in violation of its tiff in error, it is not for this court to say instructions not to issue policies on farm that the finding was opposed by a preponder property, he issued the one sued upon, deance of the evidence and therefore wrong. fendant in error would have been called The question for an appellate court is not upon to plead the facts constituting the eswhether findings of a trial court complained toppel, and doubtless he would have done so. of "are supported by a preponderance of We have found nothing in the record showthe evidence, but it is whether or not there ing defendant in error to have had any is evidence to support them.” Wells v. Yar- knowledge of the limitation on Littlejohn's brough, 84 Tex. 660, 19 S. W. 865; Koehler authority prior to the time the letter adv. Cochran, 19 Tex. Civ. App. 196, 47 S. W. vising him that plaintiff in error would not 394.
issue policies on farm property was offered [3, 4] In a letter dated January 12, 1912, in evidence at the trial. It seems to us it plaintiff in error advised Littlejohn that “the would be unreasonable to hold, under the International will not write farm property circumstances, that the case is within the under the new management.” It is not rule invoked. We think it should be held, doubted that the effect of this letter, as be- instead, that it is within the exception to tween plaintiff in error and Littlejohn, was the rule, and that the failure of defendant to deprive the latter of the right he had be in error to plead the facts showing the esfore he received it to issue policies of the toppel proven is not a reason why the judgformer on farm property. But the fact that ment should be reversed. Littlejohn, because of the restriction in the
 We do not think it should be said to letter referred to, was without authority to have conclusively appeared that Littlejohn issue the policy sued upon, is not a reason was without authority to issue policies of why it should be held that plaintiff in error plaintiff on property in Panola county. It was not liable thereon; for it appears that is true that it appeared that he was plaintiff defendant in error at the time he dealt with in error's agent “at Marshall,” but we do Littlejohn was ignorant of the restriction not think that meant he could not issue its on his authority. Defendant in error there policies on property elsewhere than in that fore had a right to assume that Littlejohn, city. And plaintiff in error does not contend being empowered by plaintiff in error to it did, but insists his authority was reissue its policies, was authorized to issue the stricted to the issuance of its policies on one in question ; and plaintiff in error property in Harrison county. The contention should be held to be estopped from assert- is based on correspondence between plaining to the contrary. 1 Clark & Skyles on tiff in error's secretary at Ft. Worth and Lit. Law of Agency, $$ 196, 206, 207, 208, 451; 1 tlejohn at Marshall, showing that Littlejohn Cooley's Briefs on Law or Ins. p. 347. Plain. in applying for appointment as agent of tiff in error, as we understand it, does not plaintiff in error to issue its policies on farm contend that the law is otherwise. Its con- property assured it that the class of risks tention is that the estoppel against it was he would write would be “among the best not available to defendant in error because planters in Harrison county;" that it rehe did not plead it. Undoubtedly the gen-plied as follows: eral rule is that facts relied upon to estab
“At the present time we have no representalish an estoppel must be pleaded. Insurance tive in your city. If you would take the agency Co. v. Bank, 17 Tex. Civ. App. 477, 43 S. W. of our company we would endeavor to care for 831; Swayne v. Insurance Co., 49 S. W. such country business as would comply with our 518; Rail v. Bank, 3 Tex. Civ. App. 557, 22 requirements, namely, owner, occupancy, brick
flues and unincumbered. We would also take S. W. 865. But, it seems, the rule does not small lines on barns and contents not to exceed apply where the party asserting the estoppel 25 per cent. of our line on dwellings and conhas not had an opportunity to plead it. tents. If you would like to have the agency of Abbott's Trial Brief, pp. 1640, 1644; Schurtz our company on this basis, and would also give
us some good city business to offset this country v. Colvin, 55 Ohio St. 274, 45 N. E. 527. business without making us a specialty farmHere defendant in error alleged that the writing company, I would be glad to plant with policy was issued by plaintiff in error "by you.” and through its agent A. C. Littlejohn."
That Littlejohn replied: The answer of plaintiff in error to the alle
"I will be pleased to accept the agency for gation was as follows:
your company along the lines outlined by your“Defendant
denies that. A. C. Little- self. Please therefore furnish me with bond and john was its agent, and denies that he had au- contract, also register and policies, and any oth
And that plaintiff in error replied:
held to have defeated a right on the part of “Agreeable to your request, I am handing you defendant in error to recover on the policy herewith bond, agency appointment blank, and as he did. For it appears from the record shall request that you kindly execute and return that defendant in error dealt with Littlejohn to me, and also sign the receipt for supplies which have been forwarded to you under sepa- on the faith of his being what his possession rate cover. Trusting to receive these papers, of plaintiff in error's policies indicated him and in the meantime you are hereby authorized to be, to wit, its agent with authority to isto proceed as our agent.
sue its policies, and in complete ignorance And on testimony of one Pillet, the act of any restriction on his authority as such ing secretary of plaintiff in error, as follows: agent. The judgment is affirmed.
"In all cases the authority of the agents of International Fire Insurance Company was limited to their own town and probably to suburbs adjoining.
MCLEMORE v. BICKERSTAFF et al. * If in any case the authority was greater than that, special permission would have
(No. 1410.) to be given, in writing, by the company. No au- (Court of Civil Appeals of Texas. Texarkana. thority was extended in any case to an agent to July 8, 1915. Rehearing Denied operate outside of his county."
Oct. 7, 1915.) Pillet, it will be noted, did not pretend to 1. JUDGMENT 256 – CONFORMITY TO SPEknow anything about the authority conferred
Under Rev. St. arts. 1936, 1990, 1994, proupon Littlejohn further than was shown by viding that a special verdict shall be conclusive the correspondence set out above. His testi- as to the facts found, and that the court must mony in that respect had reference to the conform his judgment thereto, the court must custom of his company in appointing agents conform its judgment to the special findings of
the jury. and defining their authority. We do not
[Ed. Note.-For other cases, see Judgment, think the trial court was bound to believe Cent. Dig. $$ 446-454; Dec. Dig. Om 256.] and find that the custom was observed when 2. DEEDSC66-DELIVERY_EVIDENCE-QUESLittlejohn was appointed, but think he had
TION FOR JURY. a right to determine the question from the Whether a deed was delivered, held, under showing made by the correspondence. So
the evidence, for the jury. determining it, we think the trial court Dig. $$ 127, 633; Dec. Dig. Cw66.]
[Ed. Note. For other cases, see Deeds, Cent. might reasonably have found as he did. It will be noted that in the letter appointing
3. MORTGAGES: Om 139 – ABSOLUTE DEED AS
MORTGAGE. Littlejohn agent no restriction was placed on A mortgagee holds only a lien, which is his authority as to the location of property merely a legal right to have recourse on the to be insured by policies he might issue. If mortgaged property to satisfy his claim in case the restriction as claimed existed by force foreclose, and the fact that the mortgage is evi
of default, and on condition broken he must of the contract of agency as evidenced by denced by a deed, absolute on its face, does not the correspondence, it must have been be- change the rule. cause of the assurance in the letter of Lit [Ed. Note.-For other cases, see Mortgages, tlejohn applying for the appointment that Cent. Dig. § 278; Dec. Dig. Om 139.] the class of risks he would write, if appoint- | 1. MORTGAGES Cw139 – VENDOR AND PUR
CHASER Om 228-ABSOLUTE DEED --TRANSed, "would be among the best planters in FER OF PROPERTY-NOTICE. Harrison county.” It seems to us there One obtaining a conveyance from a granwould be as good reason for construing this tee in a deed, absolute in form, but in fact a assurance as operating to deny Littlejohn chaser for value and without notice that the
mortgage, acquires no title, unless he is a purauthority to issue plaintiff in error's poli- deed was a mortgage. cies on farm property to others than the [Ed. Note.-For other cases, see Mortgages, “best planters” in Harrison county, as for Cent. Dig. 88 278, 728; Dec. Dig. Cm139; Venconstruing it as operating to deny him au- dor and Purchaser, Cent. Dig. $8 495–501; Dec.
Dig. Om 228.] thority to issue such policies only on proper- 5. ESTOPPEL 107 — TITLE BY ESTOPPEL ty in Harrison county. We think the trial
PLEADING AND PROOF. court might reasonably have concluded that One claiming title by estoppel must plead plaintiff in error in the letter appointing and prove the facts creating an estoppel. Littlejohn its agent did not intend that the
[Ed. Note. For other cases, see Estoppel,
Cent. Dig. § 297; Dec. Dig. Om 107.] general authority thereby conferred upon him to act for it in the issuance of its poli- 6. ESTOPPEL Om58 — EQUITABLE ESTOPPEL
ELEMENTS. cies on farm property was to be construed
An equitable estoppel cannot be invoked exas so limited as to locality, by Littlejohn's cept to protect the party claiming its benefit letter applying for the agency, as to deny from damage or loss resulting if the true facts him authority to issue such policies on farm should control, and one invoking the estoppel
must point to some injury he will sustain if the property outside of Harrison county. But true facts control. if we are wrong about this, and if it should
[Ed. Note. For other cases, see Estoppel, be said that it conclusively appeared that Cent. Dig. $$ 144, 145; Dec. Dig. Om58.] Littlejohn was without authority to issue 7. ESTOPPEL Om 21-DEEDS-ACTS CONSTITUTthe policy in question because the property
ING. covered by it was in Panola county, we do in fact a mortgage, signed as a witness a deed
A grantor in a deed, absolute in form but not think his lack of authority should be by the grantee to a third person. The third
em For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
MCLEMORE V. BICKERSTAFF
person knew as much about the legal status of came effective; (3) that Bickerstaff and his the title as the grantor did. The grantor did children have held peaceable and adverse not encourage or advise the conveyance to the third person. Held, that the grantor was not possession of the land in controversy conestopped from asserting, as against the third tinuously since January 29, 1889. Upon person, that the deed executed by him to the those findings the court entered a judgment grantee was a mortgage, though all the parties in favor of the defendants in error. believed that the grantee had the legal title and could convey it.
The first assignment presented is as fol[Ed. Note. For other cases, see Estoppel,
lows: Cent. Dig. § 26; Dec. Dig. Om 21.]
"The court erred in rendering judgment for 8. MORTGAGES C34 – ABSOLUTE DEEDS AS for judgment in his favor, notwithstanding the
defendants and in overruling plaintiff's motion MORTGAGES-PAROL AGREEMENT.
Where a deed, absolute in form, was a mort-findings of the jury. " gage at its inception, no subsequent parol  It is not denied that the findings of agreement of the parties could change its legal the jury justified, if they did not demand, a character.
judgment in favor of the defendants in er[Ed. Note.-For other cases, see Mortgages, ror. But it is argued that the state of the Cent. Dig. $ 83; Dec. Dig. Om 34.]
evidence was such that the court should 9. VENDOR AND PURCHASER Om 232–CONVEY- have ignored those findings and entered up
ANCE BY MORTGAGEE OUT OF POSSESSION-
a judgment in favor of the plaintiff in erA conveyance by a mortgagee out of pos- ror. It has long been the settled law in session passes no title to the grantee.
this state that when a jury has been im[Ed. Note.-For other cases, see Vendor and paneled to try the issues of fact, the court Purchaser, Cent. Dig. 88 540-545, 548–562; Dec. is required to conform his judgment to the Dig. Om 232.]
jury's findings. Rev. Civ. Stat. 1911, arts. Error from District Court, Franklin Coun- 1986, 1990, 1994; Ablowich v. Bank, 95 Tex. ty; H. F. O'Neal, Judge.
431, 67 S. W. 79; Clark & Loftus v. Pearce, Trespass to try title by J. T. McLemore 80 Tex. 151, 15 S. W. 787; Western Union against Savannah Bickerstaff and others. Tel. Co. v. Mitchell, 89 Tex. 444, 35 S. W. There was a judgment for defendants, and 4; Scott v. Farmers' & Merchants' Nat'l plaintiff brings error. Affirmed.
Bank (Civ. App.) 66 S. W. 493; Fant v. A. L. Burford, of Texarkana, and R. T. Sullivan (Civ. App.) 152 S. W. 521. Wilkinson, of Mt. Vernon, for plaintiff in
 We might rest the affirmance of this error. Dinsmore, McMahon & Dinsmore, of judgment upon the disposition made of this Greenville, and R. E. Davenport, of Chick-assignment, for none of those remaining are asha, Okl., for defendants in error.
presented in a manner which entitles them to consideration; but the plaintiff in error
insists that the judgment is fundamentally HODGES, J. This suit was instituted in erroneous because of the insufficiency of the the form of an action of trespass to try title evidence to support it. Conceding, for the by the plaintiff in error against the defend- sake of argument, that the absence of suffiants in error, to recover a tract of land situ- cient evidence to support a judgment is an ated in Franklin county. J. B. Bickerstaff error apparent upon the face of the record is the common source of title, and the de- which may be considered without an assignfendants in error are his children and only ment, we think the appeal is without merit. heirs. The plaintiff in error deraigns title The evidence shows that in 1889 Bickerstaff
eed from Bickerstaff to D. F. was the owner of the land in controversy, McLemore executed on January 29, 1889, together with two other tracts. and a conveyance from D. F. McLemore to need of money, and procured a loan from himself executed in 1896. Among other de- D. F. McLemore and made the deed of Janfenses interposed by the defendants in error uary 29, 1889, for the purpose of securing was a plea of limitation, based upon 10 McLemore in the loan advanced. In 1891 years' adverse possession. J. B. Bickerstaff McLemore executed a deed reconveying this remained in possession of the property until tract, and other lands not here involved, to his death, which occurred a short time be- Bickerstaff. There was considerable dispute fore the institution of this suit, and after as to whether or not this deed was ever dehis death some of his children have con- livered. McLemore admitted its execution, tinued to occupy the premises. The case but says that it was the understanding that was submitted to the jury upon special is the deed was to be delivered when Bickersues, and the following findings of fact made: staff paid the debt; that he failed to do (1) That the deed from Bickerstaff to D. F. this, and the deed never had been delivered. McLemore in 1889, though absolute in form The deed was produced on the trial as comand purporting to convey the land in fee ing from the custody of D. F. McLemore. simple, was intended by the parties to be Savannah Bickerstaff, one of the defendants only a mortgage to secure McLemore in an in error, testified: That her father at his indebtedness due him from Bickerstaff; (2) death left a number of papers relating to his that a deed executed by D. F. McLemore in business, which she turned over to Mr. DavApril, 1891, reconveying the land in contro-enport, his attorney. Before doing this versy to Bickerstaff, was delivered and be- she looked over them and found an instru
ment in the form of a deed, which related, they were given merely to prevent plaintiff to the land in controversy, and to which J. in error from disposing of the land. The B. Bickerstaff and D. F. McLemore were notes were afterwards returned to him, and parties. She did not recollect the date, but D. F. McLemore afterwards made a will, did recall that it also had a certificate of devising the land to all of his children in acknowledgment from S. M. Speer. Daven- equal portions. We then have the situation port testified that Miss Bickerstaff brought of a grantee who paid no consideration, and to his office a number of her father's deeds who had notice that his grantor had no right and papers, which were examined by him. to convey, insisting upon a title by estoppel.
The evidence shows that the deed from D. peared to be the deed from D. F. McLemore F. McLemore to the plaintiff in error was to J. B. Bickerstaff, reconveying the land signed by Bickerstaff as a witness, but was in controversy. This deed mysteriously dis- acknowledged before a notary public by the appeared from his office the very day it grantor. There was also evidence tending to was brought to him. That an issue of fact show that Bickerstaff received a credit on his regarding the delivery of the deed of 1891 debt due to D. F. McLemore equal to the was presented and determined by the jury sum recited in the deed. It is insisted that in favor of the defendants. This alone is these facts are sufficient to create an estopsufficient to defeat the plaintiff's right of pel against the heirs of Bickerstaff, notwithrecovery.
standing the notice to the plaintiff in error [3-5] But if it should be assumed, as the and his failure to pay a valuable consideraplaintiff in error contends, that the deed tion for the transfer. from D. F. McLemore in 1891 was never in
 There are at least two satisfactory reafact delivered, there is ample evidence in the sons why these facts do constitute an estoprecord, about which there appears to be lit- pel. First, because an equitable estoppel tle or no dispute, which shows that the chain cannot be invoked except for the purpose of of title upon which the plaintiff in error protecting the party claiming its benefit from relies is insufficient to support his claim of some damage or loss which might result if ownership. It was admitted in the argu- the true state of the facts should control the ment before this court that the deed from determination of the controversy. The party Bickerstaff to McLemore executed in 1889 who invokes estoppel must be able to point was only a mortgage, as found by the jury. to some injury he will sustain, if the truth Under a well-established rule in this state is told. Here the plaintiff in error parted the mortgagee acquires no estate in or title with no consideration, and can lose nothing to the mortgaged property which he may con- if it be shown that he got no title. The only vey to another. He holds only a lien, which injury of which he can complain is the failis merely a legal right to have recourse on ure to obtain something for nothing. The the mortgaged property for the satisfaction of fact that in the transaction Bickerstaff may his debt in case of default. He cannot sue have secured a benefit, in the nature of a and recover the property in the event the credit on his debt, does not alter the situacondition is broken, but must seek a fore- tion. An estoppel is interposed, not because closure of his lien and a sale of the property. one party has received a benefit from the The fact that the mortgage is evidenced by a transaction, but because another may be indeed absolute upon its face does not alter the jured. The rules governing estoppel are not rule. Mann v. Falcon, 25 Tex. 274; Edring- to be confused with those which govern ratiton v. Newland, 57 Tex. 627; Wiggins v. fication. Wiggins, 16 Tex. Civ. App. 335, 40 S. W. 645,  The second reason is, because the plainand cases cited. It follows, then, that if D. tiff in error apparently knew as much about F. McLemore had no title to convey, the the legal status of the title to the land as did plaintiff in error acquired none by the con- Bickerstaff. Wortham v. Thompson, 81 Tex. veyance made to him in 1896, unless he occu- 348, 16 S. W. 1059. The fact that Bickerstaff pied the position of a purchaser for value signed the deed to the plaintiff in error as and without notice that the deed under a witness, standing unexplained, tends merewhich his grantor held was only a mortgage. ly to show that he consented to the transacStafford v. Stafford, 29 Tex. Civ. App. 73, 71 tion. It does not imply that he encouraged S. W. 984; 1 Jones on Mort., § 808. One who or advised it. We may assume as true that claims title by estoppel must plead and prove all of the parties believed that D. F. Mcthe facts which create an estoppel. There is Lemore had the legal title to the land and in the evidence no pretense that the plaintiff could convey it to another, and that they dein error was ignorant of the true character sired to accomplish that particular end; it of the deed from Bickerstaff to D. F. Mc-would still be nothing more than a misLemore; and, according to his own testi- take of law. It would not follow that Bickmony, he paid no consideration for his con- erstaff would be guilty of a wrong such as to veyance. His deed recited a consideration preclude him or his heirs from thereafter of $3,500 to be paid in two installments, but stating the truth about the transaction. he admits that it was never the intention of  If the deed under which D, F. McLe
WHITAKER V. HILL
tion it remained a mortgage, and no subsecretion should then be regulated by the balance quent parol agreement of the parties could of inconvenience or injury to the one party or
the other. alter its legal character. Keller v. Kirby, 34 Tex. Civ. App. 404, 79 S. W. 82; Ullman Cent. Dig. ss 305, 306, 357–371; Dec. Dig. Om
[Ed. Note.-For other cases, see Injunction, v. Devereux, 46 Tex. Civ. App. 459, 102 S. 136, 163.j W. 1163; Hart v. Eppstein, 71 Tex. 752, 10 4. EXECUTION 172 TEMPORARY INJUNCS. W. 85.
TION-GRANTING OR DISSOLVING.  A conveyance by a mortgagee out of In a suit to restrain an execution sale and possession passes nothing. Perkins v. Sterne, to remove an abstract of a judgment as cloud 23 Tex, 561, 76 Am. Dec. 72; 1 Jones on creditor had notice of the rights of a purchaser
on title, evidence held to show that execution Mort. 808. The law will impute a knowl- under an unrecorded deed sufficient to justify edge of these rules as much to the plaintiff granting of a temporary injunction and refusal in error as to any other party to the trans- to dissolve it. action, There is nothing in the record to
[Ed. Note.-For other cases, see Execution, indicate that he was ignorant of them. The Cent. Dig. 88 519-539; Dec. Dig. em. 172.] evidence also shows that Bickerstaff remain
Appeal from District
District Court, Cherokee ed in the undisturbed possession of the land County; L. D. Guinn, Judge. from a period antedating the deed of 1889
Action by O. H. Hill and others against H. till his death, and that he appropriated the M. Whitaker and another. From an order re rents and revenues to his own use; that aft-fusing to dissolve a temporary injunction,
defendants appeal. erward his children continued to occupy the premises and to make the same use of them. Mrs. Rosa P. Osburn, one of the appellees, While the evidence shows that Bickerstaff owned 254.8 acres of the Jose Maria Procella paid the taxes, he seems to have rendered the survey, situated partly in Cherokee and partproperty for taxation in the name of McLely in Smith county. In consideration of more. During the time he remained in posses- $1,008.40 paid to her by C. H. Hill, another sion he sold and conveyed portions of the land one of the appellees, and the execution and included in McLemore's deed. The finding delivery to her by him of his four promis of the jury that the defendants in error had sory notes for $250 each, payable February completed the bar of limitation is not with- 13, 1914, 1915, 1916, and 1917, respectively, out support.
Mrs. Osburn conveyed the land to said Hill For reasons not necessary to state we have by a general warranty deed dated February passed over several tenable objections urged 13, 1913. The deed was not filed for record by the defendants in error against the con- in Cherokee county until April 7, 1915. The sideration of this case on its merits.
notes made by Hill were secured by the venThere is no error in the judgment, and it dor's lien retained on the land. Before any is affirmed.
of them had matured Mrs. Osburn assigned the notes and her claim on the land to secure the payment thereof to D. F. Wilkinson, an
other one of the appellees. The note due WHITAKER et al. v. HILL et al. (No. 1511.) February 13, 1914, was paid by Hill at its (Court of Civil Appeals of Texas. Texarkana. maturity. The others, except interest which July 7, 1915. Rehearing Denied
had accrued thereon, had not been paid at Oct. 7, 1915.)
the time the order appealed from was made. 1. JUDGMENT 788-LIEN-RECORDING. March 29, 1915, appellant H. M. Whitaker,
A judgment creditor may, notwithstanding having on February 11, 1915, obtained judgan unrecorded deed by the debtor to a third per- ment against Mrs. Osburn for the sum of son, acquire a lien on the land by complying with Vernon's Sayles' Ann. Civ. St. 1914, arts. $1,500, filed an abstract thereof in the office 5614-5616, relating to judgment liens, or by of the county clerk of Cherokee county, where levy of execution without knowing and without 200 acres of the land was situated, and had being chargeable with notice of the third per- same recorded. April 7, 1915, an alias exeson's title under articles 6827, 6828, and may, under article 6824, subject the land to his judg. cution previously issued on the judgment was ment.
levied on the 200 acres in Cherokee county [Ed. Note.-For other cases, see Judgment, by Forest Reagan, sheriff, who is the other Cent. Dig. 88 1368, 1369; Dec. Dig. Om788.]
appellee. Thereupon Mrs. Osburn, Hill, and 2. JUDGMENT Om769—LIEN-RECORDING AND Wilkinson commenced this suit against WhitDOCKETING JUDGMENT-INDEX.
aker and the sheriff to restrain the latter The indexing of the abstract of a judgment from advertising and selling the land and to duly recorded is, under Vernon's Sayles' Ann. Civ. St. 1914, arts. 5614–5616, indispensable to have the cloud cast on the title of Hill therethe creation of a lien.
to by the recording of the abstract and levy [Ed. Note.-For other cases, see Judgment, of the execution removed. The appeal is Cent. Dig. § 1327; Dec. Dig. 769.]
from an order made by the judge in vacation 3. INJUNCTION Ow136, 163–TEMPORARY IN- May 18, 1915, refusing to dissolve a tempo JUNCTION-GRANTING OR DISSOLVING.
rary injunction he had granted May 1, 1915, The court, in granting a temporary injunc- restraining the sheriff from proceeding furtion or refusing to dissolve it, should require a case of probable right and probable danger to ther under the execution pending a trial of the right without the injunction, and its dis- the cause on its merits.