47 Tex. 240 | Tex. | 1877
On a former appeal in this case, it was held by our predecessors that the plaintiff had slept too long on his rights, and that he had shown no sufficient excuse for the delay. After the case was remanded, the plaintiff filed amended petitions, in which he seeks to account for the delay from 1836 to 1848 in making a location, and from 1848 to 1855 in obtaining patent, and also seeks to excuse his failure to sue until the fall of 1868. He shows that the certificate itself was obtained in 1838 by the efforts of Eeed; that it was located first on land which, proving to be inferior and embarrassed by a conflicting claim, was abandoned, and the present location, being “one of the most fertile and valuable tracts of land in the State of Texas,” was secured by buying the locative privilege of one Thompson, at a cost of fifty dollars. The issuance of patent, he states, was delayed, without his default, by the owners of an adjoining grant claiming that there was a conflict, and the refusal of the commissioner to issue it until 1855. It is further stated that neither West nor his hefts expressed any dissatisfaction at these delays, but in all respects acquiesced in the location as made, and enjoyed the full benefits of the same.
In excuse of the delay in bringing suit, it is alleged, that Joseph West could not be found when the patent issued; that Eeed sought for him in vain; and, in the mean time, it would seem that the land remained unoccupied, Eeed retaining the patent and paying taxes up to his death; and that not until the sale to Flemming, in 1868, was it known that the locative interest of Eeed was disputed. The amended petition, amongst other matters, which it is not deemed necessary to notice, also sets up the civil war and the suspension
In the opinion delivered on the former appeal, the court, though reprobating the delay in locating and procuring patent, say, that “ in 1855, when the patent issued, a court of equity might have compelled a specific performance of the contract; a court of law awarded damages for the breach.” In a subsequent case, where the delays of the locator were scarcely less than in this, Justice Walker, who delivered the opinion in this case, says, justly, that “ throughout our reported cases great latitude in time appears to have been allowed to land locators in mating their selections.” (Bell v. Warren, 39 Tex., 111.) In that case, as in this, the heirs of the owner of the certificate had received the benefit of the location, and it was held that equity would enforce the contract, there being no evidence of a surrender of rights or a culpable neglect to enforce them. If the delay of Heed in making the location was so unreasonable that West might have treated the contract as abandoned, it seems that no such right was ever asserted. Whatever might have been the rights of West growing out of the delay and out of the necessity which he might have been under, after issuance of patent, of accepting the lands secured thereby, however inferior and undesirable, as the only alternative left him, it is alleged that he acquiesced in the location and patent as made, and consequently waived any such right. If the averments of the petition are true, the delays of the locator were more than compensated by the manner in which he finally carried out his part of the contract. Under the facts as alleged in the amended petition, we think that in 1855, when the patent issued, Reed could have enforced specific performance of the contract, and became in fact the equitable owner of the undivided half of the land.
But it seems to have been the opinion of the court, on the facts before it on the former appeal, that, by his delay in bringing suit after his right of action accrued on the issuance
If Eeed had then gone into possession, his equitable title would have protected him, and entitled him to possession. (Id.) If, on the other hand, West had then repudiated the trust, by selling the entire tract or by holding possession, claiming for himself alone, then limitations would have commenced to run against the plaintiffs claim for equitable relief. (Early v. Sterrett, 18 Tex., 116.) Until some act indicative of an intention to hold adversely, limitations would not commence to run. (Id.)
It does not appear that plaintiffs rights were repudiated until the sale to Flemming in 1868, and on the face of the petition there appears to be no reason for charging him with neglect up to that time.
In Glasscock v. Nelson, 26 Texas, 154, referred to as coincident with the case at bar, the trust had been repudiated and the plaintiffs cause of action had accrued twelve years before suit brought. Ordinarily, where the holder of a title-bond has performed his part of the contract, ten years must elapse before the court will refuse him specific performance. (Yeary v. Cummins, 28 Tex., 94, 95; Glasscock v. Nelson, 26 Tex., 154; Carlisle v. Hart, 27 Tex., 354; Brown v. Guthrie, 27 Tex., 610; 23 Tex., 431; 13 Tex., 459, 484.)
Even charging the plaintiff with laches from the time the patent issued, if the interval during which the statutes of limitation in civil cases were suspended be deducted, less than six years elapsed before suit was brought. Surely it cannot be doubted that during the suspension of the statutes of limitation equity will follow the law, and will not, unless it be for some equitable reason, hold a complainant guilty of laches because of his failure to file his bill during this inter
Because the court erred in its ruling, the judgment is reversed and the cause remanded.
Reversed and remanded.
