Walling v. Wheeler, 39 Tex. 480

Walling v. Wheeler

39 Tex. 480 | Tex. | 1873

Lead Opinion

Walker, J.

Jesse Walling entered into a contract, with J. M. Irish and John McLanahan, dated on the sev*485enteentli of March, 1845. The contract itself releases whatever title Irish and McLanahan had to Walling, of the headright certificate of Jean Baptiste Gay to a league and labor of land.

By the terms of the contract, Wailing agrees to procure, a title to the certificate, or the land appropriated by it, “out of his OAvn proper means,” and then he is authorized to sell the land in whole or in part, and retain for his commission one-fifth of the proceeds of sales, and the other'four-fifths he is to pay over to John McLanahan or bearer.

This contract was to expire three years from date. Walling bound himself at the expiration of three years to reconvey all the land which remained unsold, and in •default of performing his covenants, he agrees to subject himself to an action of debt or damages.

This suit was originally brought by the appellee against the appellants as executors of the will of Walling.

The petition counts upon the contract of March 17, 1845, and sets up no other contract or agreement, written or verbal. It does not appear that at the expiration of three years from the date of the contract, Walling had obtained any title to the headright certificate of Gay, or of any land appropriated by it. If he had, and had not complied with the covenants of his contract, a right of action by the express terms of the contract accrued against him.

The contract expired on the seventeenth of March, 1848; this action Avas not commenced until .the twenty-fifth of January, 1870, after a lapse of twenty-two years.

We think it can hardly be contended that this action was not barred by limitation. Under the repeated decisions of this court the claim Avould be pronounced stale.

But it is claimed that an executory trust, was created in Walling by the contract of March 17, 1845, and that lim*486itation cannot run against an executory or continuing trust. There might be some foundation for this argument if it were proven by the record that Irish and Mc-Lanahan conveyed any interest in the land to Walling by their contract. But this does not appear; on the contrary, it does appear, by deed dated August 18,1856, that Jesse Walling purchased from William Newell the head-right certificate of Jean Baptiste Gay for a league and labor of land. This deed does appear to remove all doubts about this case, and we are unable to see by what right Irish and McLanahan, or those claiming under them, can expect to recover in this action.

It is scarcely necessary to notice more than the first error assigned. The court certainly erred in overruling the general and special demurrers and special exceptions to the plaintiff’s petition.

The judgment of the District Court is reversed and the cause remanded.

BE VERSED AND REMANDED.

A rehearing was granted.

Rehearing

McAdoo, J.,

on rehearing.—A thorough examination of this case on rehearing has fully satisfied our minds of the correctness of the view of the case announced by Justice Walker in his opinion heretofore rendered.

The written contract between Walling and the intestate of the appellee was a simple personal contract between the parties, by the terms of which Walling expressly bound himself to perform the services undertaken within three years from the date of the contract. It was expressly provided that if the terms of the contract had not been fully complied with within the time prescribed, then and thereupon a right of action accrued in the nature of a suit for damages.

*487In no sense can the instrument sued on be construed as creating an express and continuing trust.

Suit was not brought upon the contract within four years from the accrual af the right of action; on the contrary, some twenty years elapsed before suit was instituted.

The claim had long since been barred by the statute of limitations, if indeed it had not become a stale demand.

For these reasons we adhere to the former opinion and judgment.