28 Tex. 91 | Tex. | 1866
—There was no error in overruling defendant’s objections to the bond offered in evidence by plaintiff. It was the instrument upon which the suit was founded, and purported to be signed by John Yeary, the ancestor of the defendants. There was no necessity, therefore, for the plaintiff to prove its execution, unless denied under oath by the defendants. (O. &. W. Dig., Art. 466; Paschal’s Dig., Art. 1443, Note 549.) As this denial was not made, the instrument must be regarded as fully proved, according to the rules .of the common law, and such proof dispensed with the registration and notice required by the statute. (O. & W., Art. 469; Robinson v. Martel, 11 Tex., 149; Paschal’s Dig., Art. 3716, Note 850.) Yor do we perceive that there was any error in the charge given by the court, to the effect that a period of ten years was the shortest time that would bar an action for specific performance on this bond, and that limitation would not begin to run until a demand and refusal to make title, or some act done by Yeary or his heirs, indicating an intention to claim the land or repudiate the sale. It is not necessary for us to discuss the question as to what length of time will bar an action for specific performance on a bond for title to land.
The charge of the court as tó the time when the statute would commence to run is in strict conformity with the law as heretofore decided in this court. (See Hemming v. Zimmerschitte, above cited; Holman v. Cresswell, 15 Tex., 394-398; Early v. Sterrett, 18 Tex., 117.)
In the first case cited, Chief Justice Hemphill says the rule is, that limitation upon the vendee’s right of action for a specific performance, where he has carried out his part of the contract, does not begin to run until the vendor has indicated an intention to refuse performance, or to claim the property as his own. In Holman v. Cresswell it was held, that the statute in such cases did not begin to run until the vendor manifests an intention by adverse possession or some hostile act to claim the land as his own. In Early v. Sterrett the court said, that a sale by the vendor to a third party, after the execution of the bond, constituted such hostile act, and that limitation would commence to run from such sale. In the case of Glasscock v. Nelson, decided by our late Supreme Court at Austin, in 1862, (26 Tex., 160,) limitation of ten years was applied to a bond similar to the one under consideration, but it was held to commence at the date of the sale by the vendor of the land mentioned in the bond. The charge of the court was, therefore, correct as a principle of law, and under it, as applied to the facts of the case, the jury was correct in finding a verdict for the plaintiff. There was no proof that the vendor, in the bond now under consideration, or his representatives, ever took possession of the land, or sold it, or attempted to sell it, or set up any claim thereto.
But it is said that the statute commenced running from the date of the bond, because the title was to be made when the patent issued, and this had already occurred before the execution of the bond. An instruction to this effect was asked, and refused by the court. It is evident that both parties were ignorant of the existence of the patent at the time the contract was made. There was a mutual mistake as to this fact, which should not be construed to the prejudice of either party. It would not have been just to have allowed the vendee to subject the vendor to the costs and burdens of an action for specific performance, before he knew that the contingency had arisen upon which he was to convey the land. On the other hand, laches should not be imputed to the vendee, so long as he was ignorant of the right which had accrued to him to perfect his title to the land. The furthest we could possibly go, would be to allow a reasonable time for a knowledge of the issuance of the patent to reach the vendee. This suit was commenced on the 30th of August, 1858, and the bond was executed on the 14th of June, 1848. Only about one month and a half over and above the ten years of limitation had elapsed and we cannot say that this was an unreasonable time to allow the vendee to ascer
A judgment for the costs of suit was entered up against defendants, and of this they also complain. They suggest that plaintiff might have procured his title by a much less expensive process, and that therefore he ought to be taxed with the costs of this proceeding. The suggestion would come with more force, had there been no resistance offered by defendants to an enforcement of plaintiff’s demand. It would then have presented a proper case for the exercise of a discretion of the court in charging the costs of the suit to the prevailing party. But as they interposed every possible obstacle to the plaintiff’s recovery, and he succeeded in obtaining a judgnlent over every resistance that could be made by them, the court did not err in charging them with the costs which necessarily accrued in the cause.
The judgment is affirmed.
