Carlisle v. Hart
27 Tex. 350
Tex.
1864
Check Treatment
Moore, J.

Whatever right the plaintiffs in error may have had to the land in controversy, as heirs of their deceased mother, Mary Hart, the colonist, was lost to them by their laches and *353negligence. The record shows that the land in dispute was granted in November, 1834, to Timothy Hart, under whom the defendants in error claim, as the only heir of his mother, Mary Hart, the colonist, and that the plaintiffs in error, who were also heirs of said Mary Hart, were of lawful age, and residents of the town of Eefugio when said title was issued. It can not be doubted that they must have been cognizant that Timothy Hart had procured the title in his own name at the time or soon after it was issued. At least, as by the ordinary diligence used by most persons in reference to their own affairs, they would, shortly after the issuing of the title have ascertained the fact, the law will charge them with a knowledge of it from the time they might have thus learned it. Yet the equitable title which the plaintiffs in error now seek to enforce, was not asserted by any proceeding which they have prosecuted to judgment, until set up by the answer and petition of intervention filed in this case in December, 1857, a little more than twenty-three year’s after the grant of the land to Timothy Hart, and several years after his death. It is true the plaintiffs in error had previously, at different times, instituted their distinct suits against Timothy Hart and his personal representative to enforce the same claim which they now make. But each of these suits seems to have been voluntarily abandoned by the plaintiffs. At least, neither of them were prosecuted to a judgment, and there is no sufficient reason disclosed in the record why, if the plaintiffs had confidence in their right of recovery, this was not done. And aside from these abandoned suits, which can hardly he said to give any strength to their claim, the only evidence of an assertion of an interest in the land by any of the plaintiffs in error previous to its being done in this suit, is the fact, that near twenty years subsequent to the date of the title, and after the death of Timothy Hart, Carlisle and wife took possession of it.

It seems to have been held by this court heretofore, (see De Cordova v. Smith, 9 Tex., 129; Tinnen v. Mebane, 10 Tex., 246,) that sneh equitable rights as the plaintiffs in error are seeking to enforce, are not without the bar of the statute of limitations, and a failure to prosecute a suit for ten years from the accrual of their *354cause of action will conclude a recovery. But whether such case» come strictly within the statute, or not, it can not he questioned that it furnishes the analogy by which the courts are guided in adjudicating upon them. And after the lapse of ten years from the accrual of the right, the courts will not grant relief without the proof of facts showing an equitable excuse and justification of the delay. To do so in this case the plaintiffs in error rely upon the depopulated state of the country and disorganized condition of the courts in that part of the State previous to 1847, and, we think, this might be well held as accounting for their failure in prosecuting their claim up to that time; but on the other hand,, its long previous existence should, after the organization of the courts and the regular administration of the law, in the county in which the land is situated, which the record shows has been the case since 1847, call for a more prompt and diligent assertion of it, than if it had only then had its origin. . The plaintiffs in error, however, delayed attempting an effectual prosecution of their alleged right, notwithstanding the great length of time it had already been in existence, for ten years after the expiration of the time during which they allege there was any pretext for their failure to bring their suit. Under these circumstances, and without other excuse for their delay than has been given, the right asserted by them must be regarded, if not technically barred by the statute of limitations, at least, as a stale demand which a court of equity will not enforce.

There being no error in the judgment of which the plaintiffs-in error can complain, it is affirmed.

Judgment affirmed.