Case No. 5570 | Tex. | May 21, 1886
It has frequently been held by this court that when a contract like those upon wMch this sMt is founded has been executed by the obligee, and the legal title to the land has vested in the obligor, the latter holds that portion of the land he has contracted to convey in trust for the benefit of the obligee. So long as tMs trust relation continues, and is recognized by the obligor, and more especially if, by any acts on his part, the obligee is induced to refrain from suit, the statute of limitations will not run against the enforcement of the contract. When it is set in motion the right of action is not barred till after the lapse of ten years. This was the rule of decision prior to the adoption of the Revised Statutes. DeCordova v. Smith, 9 Tex., 129" court="Tex." date_filed="1852-07-01" href="https://app.midpage.ai/document/de-cordova-v-smiths-admx-4887652?utm_source=webapp" opinion_id="4887652">9 Tex., 129; Geary v. Cummins, 28 Tex., 95; Hemming v. Zimmerschitte, 4 Tex., 167; Holman v. Criswell, 15 Tex., 397; Early v. Sterrett, 18 Tex., 117; Glasscock v. Nelson, 26 Tex., 150" court="Tex." date_filed="1861-07-01" href="https://app.midpage.ai/document/glasscock-v-nelson-4889951?utm_source=webapp" opinion_id="4889951">26 Tex., 150. In this case, according to the allegations of the petition, Dailey expressly recogMzed the equitable interest of Rucker until 1872 or 1873, and induced him not to bring suit upon the contracts entered into between himself and Cox; and the first open act repudiating the trust occurred in 1873, when Dailey sold the three hundred and twenty acre tract to Sledge.
The amended original petition which, with a trial amendment, constitutes the pleadings of the appellant as they are found in the record, states that it is in amendment of a previous petition, filed March 30,
A defendant setting up the statute of limitations by way of demurrer must show that on the face of his adversary’s pleadings the action is barred. He has not done so if it appears from the recitals of the petition deihurred to, that the suit was begun before the bar of the statute was interposed. The defendant has the affirmative on this issue, and he must sustain it by showing conclusively, from the plaintiff’s pleadings, that the suit was not commenced in time. Our rules, which require that an amendment shall state the date of the instrument whose place it takes, evidently intended to provide for cases where the time of filing the former pleading might be of some importance. This date may be of much importance when the statutory time of limitation has elapsed before the amendment was filed. In such cases the rules enable us to look to the date of the substituted pleading, as stated in the amendment, to ascertain whether the statute may not have been arrested before it interposed its bar. In the court below there can be no difficulty in ascertaining this fact by a reference to the former pleadings which are still on file; but as the amended pleadings alone are brought to this court, we look to their recitals only in passing upon the question. But the substituted instruments can be made part of the record, and it is the duty of the party setting up the statute to have this done, if he would rebut the inference to be drawn from the recitals of the amendment that the suit was brought in time to save limitation.
It may be added that in this case the pleadings of some of the defendants were filed before the amended petition, and from their averments it is apparent that the original petition, to which they were an answer, alleged the same causes of action as did the amendment. We think, therefore, that the action was not barred at the time it was commenced, under the rule as to limitation laid down by this court previous to the adoption of the Revised Statutes, nor can these statutes be appealed to in support of the defence of the appellees. They pro
The causes of action in this case accrued in 1855 and 1860 respectively. If the Revised Statutes governed, the action was barred before the adoption. The legislature had, of course, no right to declare a cause of action barred when but a portion of the time of limitation had elapsed at the date of the Revised Statutes. They could not deprive the plaintiff of all remedy. They were compelled to allow him a reasonable time within which to assert his rights. But the Revised Statutes do not attempt any such thing. They apply to claims against which the statute had commenced to run before their adoption, only when they prescribed a shorter period of limitation than did the old law. Ten years was prescribed by the old law for cases like the present, and the Revised Statutes prescribe the same time.
The date from which limitation is to commence under the latter, must, sometimes, though not universally, be different. This, however, is not an alteration of the period of limitation, and we have not the power to extend this provision of the Revised Statutes so as to bring within it cases which it does not in terms embrace. We think the court erred in sustaining the special exceptions to the amended petition. As the cause will be remanded, it is proper to say that if the amended petition did actually bring in new parties, not in the cause before it was filed, they will be entitled to have the period of limitation estimated, as to themselves, from the date when they acquired their rights in the subject matter of the suit down to the filing of the amended petition.
For the errors indicated the judgment is reversed and the cause remanded.
Reversed and Remanded.
[Opinion delivered May 21, 1886.]