Taylor v. Campbell

59 Tex. 315 | Tex. | 1883

Stayton, Associate Justice.—

This action was brought for the specific performance of a contract to convey land, alleged to have been made between Howell & Bagsdale and Jacob Buth on the 8th day of June, 1857. The appellant claims as the assignee of Howell & Bagsdale. Among other defenses the defendant pleaded a general denial, which imposed upon the appellant the necessity of proving his case. The cause was tried without a jury, and, as the judgment shows, upon the evidence.

There is in the transcript an agreement, signed by counsel for the respective parties, of facts which it was agreed might be offered in evidence; but there is nothing to show that this agreement was offered in evidence on the trial of the cause, and it does not purport to be a statement of the facts signed by counsel and approved by the judge who tried the cause. It does not even bear a file-marlc showing that it was a paper in the case.

There is no statement of the conclusions of law and fact found by the court as permitted by art. 1333, R. S.; nor does the record exhibit an agreed case under art. 1414, R. S.

In this state of the transcript we cannot recognize the agreement of counsel as a statement of facts. Curry v. York, 3 Tex., 359; Smith v. Tucker, 25 Tex., 604; Frost v. Frost, 45 Tex., 338; Wampler v. Walker, 28 Tex., 598; Witten v. Poindexter, 25 Tex. Sup., 378; Cross v. Crosby, 42 Tex., 114; Johnson v. Blount, 48 Tex., 38.

As the case is presented by the transcript, it must be presumed that the plaintiff failed to make such proof as would sustain his case, or that the proof for the defendant destroyed the case; hence this court cannot revise the action of the court below upon the assignments of error made, all of which are based upon alleged errors of the court in its findings upon the testimony.

We deem it proper, however, to say that if we could consider the agreement of counsel as a statement of facts, it would not change the result. The delay of more than twenty years after the cause of action, by the exercise of ordinary diligence, would have accrued, the most of the parties to the original agreement being dead, is not sufficiently excused.

A suit might have been brought in 1861, and, by the exercise of diligence in procuring the patents, even earlier. Yet no action was brought until December 16, 1880, nor is any excuse given for not sooner instituting it.

The statute now makes ten years the period which will bar an action for the specific performance of a contract to convey real estate (R. S., 3209), and it would seem that, in the absence of a statute, the longest period of limitation prescribed as a bar to real actions ought to bar an action for specific performance, unless some good reason for the delay in bringing the suit is shown.

The judgment is affirmed

Affirmed.

[Opinion delivered April 24, 1883.]