Rivers v. Washington

34 Tex. 267 | Tex. | 1871

Ogden, J.

That the statute of limitation cannot be interposed to defeat an action, by general demurrer, becomes most manifest on comparing the character and form of a general demurrer with the statute of sixteenth of February, 1852, (article 4629, Paschal’s Digest,) which provides that limitation shall be specially set forth in the answer, or it cannot be made available as a matter of defense. But it is believed that under the authority of Hopkins v. Wright, 17 Texas, 35, where it is held that the whole of the defensive pleadings or allegations constitute the answer, the statute of limitation ¡may be set up by special exceptions or special demurrer, which may invoke the judgment of .the court as to the legal rights .of the parties as presented in their pleadings ; or it may be specially set up by plea, or in the answer, technically so-called, to be determined by a jury from the facts of the case, under proper instructions from the court in regard to the law applicable to those facts.

To the original petition in this cause the defendant filed a general demurrer and a general denial, and afterward the plaintiff and defendant amended their pleadings several times, and finally the defendant, in his last amended answer, set up specifically the plea of limitation. Upon these pleadings the parties announced themselves ready for trial. They waived a jury, and submitted the cause to the court on the petition and answer, and the several amendments to the same. There seems to have been no testimony adduced on either side, and the court was asked to render judgment on the merits of the petition and answer. The court decided the cause on the general demurrer, sustaining the same because the plaintiff’s cause was barred by her laches and the statute of limitation. From the peculiar manner' in which this cause was submitted to the court, not on the demurrer, but upon the whole pleadings, we are not prepared to say that the plea of laches, stale demand and limitation were not properly before the court for investigation and decision. We are of the opinion that, so far as the parties to this cause are concerned, it is immaterial whether this suit was originally instituted for the recovery of the land specifically, or whether it was for the rescission of the contract of sale, or for specific performance; since the plea of laches or limitation might be set up after the lapse of the same time as a bar to either form of action. There has been no change of parties since the original contract of sale, and when, the bond for title was executed the plaintiff’s intestate put the defendant in possession of the land, who has since held the same by actual possession ; and it is believed that under the authority of DeCordova v. Smith, 9 Texas, 129; DeWitt v. Miller, 9 Texas, 239; Walker v. Emerson, 20 Texas, 707; and Glasscock v. Nelson, 26 Texas, 150, this court would be fully authorized in presuming, and so deciding (without proof to the contrary), after the expiration of ten years from the time the last payment became due, that the whole purchase money had been paid and settled, and that the vendee was entitled to an absolute deed.

We think that when a vendor has given a bond for title on the payment of the purchase money, and puts the vendee in possession, who continues to occupy as his own and improves the purchased property, and the vendor, knowing all this, rests quiet for the space of ten years after the purchase money has become due, he should be chargeable as one who had slept upon his right, (Walker v. Emerson, 20 Texas, 707,) and the same rule might be properly applied whether he sued for specific performance or a rescission of the contract, for in either case the presumption of payment would be equally strong and conclusive. But the Constitution of 1869, § 43, article 12, has adopted a new rule for computing the time when the statute of limitation has run as a bar to civil actions. That section declares that the statute of limitation did not run during the time between January, 1861, and the adoption of the Constitution. And this section was thoroughly and ably discussed in the case of Crawford v. Bender, at this term of this court, wherein the power and authority of the Convention to insert such a clause, and the binding force of the clause are fully recognized and sustained. With this clause of the Constitution recognized as in force, we are led to decide that the judgment of the court below, in sustaining the demurrer and plea of limitation, is erroneous, and for which error the judgment is reversed and the cause remanded.

Reversed and remanded.