41 Tex. 102 | Tex. | 1874
In so far as the petition sets up a cause of action, under an assignment from James Hewitson, who is described as “ late of the Republic of Mexico,” and who is alleged to have sold his interest to James Power in August, 1835, we think it shows a claim by assignees of an alien empresario, and cannot be maintained. The act of December 14, 1837, under which the suit is brought, is as follows:
“ That, in order to settle the claims of empresarios, each and every one of the same are hereby authorized to institute a suit against the President of the Republic of Texas, which suit or suits shall be tried in the county in which is situated the seat of Government, and shall be tried as other land suits are required to be tried. And should any empresario who should thus sue fail to establish the claim for which he sues, he shall pay all the cost of said suit: Provided, That neither aliens nor the assignees of aliens shall be entitled to the benefits of this act.”
In Rose v. The Governor, 24 Tex., 503, this court held that this proviso “ meant to exclude from the benefits of this act both alien empresarios, alien assignees of citizen empresarios, and assignees of alien empresarios, even though such assignees were citizens of the Republic.” As to the eight leagues claimed under an assignment from Hewitsou, we think the demurrer to the petition well taken.
W ere it necessary to do so to dispose of the ease, we should be inclined to hold that the act just recited was not intended to authorize suits such as this. That act was construed as referring to the courts the ascertainment of the facts showing how far the empresarios, up to the declaration of independence, had complied with their contracts, and the adjudication of the equitable rights of the
In the former case, 0. Ji Hemphill, in discussing the question whether empresarios were only entitled to premium bonds for colonists to whom titles had issued, or colonists who had been received and admitted as such, says:
“ Had this been the amount of compensation to be awarded, it could, without incumbering the dockets of the courts, have been ascertained by a slight investigation in the General Land Office.” (Page 21.) It may well be doubted whether the “claims of empresarios,” on which suit is authorized by the act, include a claim to a bounty or indemnity granted to empresarios, which, if valid, was not dependent on the extent to which the empresarios had approximated compliance with that contract.
But we think the demurrer to the petition was properly sustained, on the ground of the laches of plaintiffs and their ancestor in the prosecution of their claim. Over fourteen years elapsed after the passage of the law authorizing suit before the death of James Power, sr., and after that event more than twenty years additional before the institution of this suit. Ho excuse whatever is alleged for the failure to sue in the lifetime of James Power, sr.; and the only excuse alleged for the delay after his death is that his will provided that his estate should be kept together until his youngest child became of age; and it appears that at the institution of this suit one of the heirs was still a minor. It would seem to be a legitimate inference from this averment that the title had been represented by an executor, or administrator with the will annexed, who might have prosecuted the suit.
We do not think the act of December 14, 1837, was intended to exempt parties instituting suits under it from the ordinary laws of limitation. On the contrary, the law seems to have in view the prompt settlement of such
We think no sufficient excuse is shown for the great delay in the prosecution of this claim, and that, even if the act of 1846 were held to cure the delay up to that time, the lapse of twenty-seven years after that date before filing this suit is fatal to the case, according to the most liberal rules on that subject recognized in this court.
The judgment is affirmed.
Affirmed. "
[Justice Moore did not sit in this case.]
