Watson v. Inman , 23 Tex. 531 ( 1859 )

Bell, J.

We are of opinion, that there was no error in the judgment of the court below, sustaining the exceptions to the original and amended petitions of the plaintiffs. The contract between Robert G. Watson and G. G. Alford, was entered into in the year 1838. The petition of the plaintiffs states that Alford died about the first day of April, 1847, and that administration upon his estate was granted in the year 1847. This suit was instituted in the month of February, in the year 1857. There is nothing shown in the petition which can entitle the plaintiffs, at so late a day, to call upon the court to enforce so stale a demand. In any view that can be taken of the case, the plaintiffs do not show themselves entitled to any relief. The contract is a very peculiar one in its terms, but we are of opinion that it is susceptible of no construction, by which the plaintiffs can, at this time, maintain a suit upon it.

If it devolved upon Watson to take the initiative in carrying the contract into effect, most surely his laches has been such, that he cannot now be heard to complain. One of the amended petitions states, that Robert G. Watson died about the month of January, 1856. Thus it is shown, that from October, 1838, until the time of his death, in 1856, he took no measures that were of any efficacy in law, to avail himself of the stipulations of the contract.

If, on the other hand, it be contended, that it was Alford’s duty to locate the land scrip, named in the agreement, and to give notice to Watson of its location, before Watson could be required to move in the matters between them, it would result from this view, that Alford was under obligation to locate the land scrip within some reasonable time, and that upon his failure to do so, Watson’s demand would have become a moneyed demand against Alford.

The petition of the plaintiffs seeks, first, to establish a moneyed demand against the estate of Alford. As a moneyed demand, it may well be held to be stale, and not entitled to the favorable consideration of the court; because it ought to have been prosecuted within four years after the lapse of a reasonable time for the performance by Alford, of whatever he was bound by the contract to do. This is the most liberal view that can be taken of the claim of the plaintiffs, as a demand for money.

In the last amended petition, the plaintiffs ask', that they may have 640 acres of the third of a league of land on the Trinity river, which is named in the contract, provided they are not entitled to a judgment for the amount of money claimed. This prayer of the amended petition, is the first expression of a willingness to take any portion of the land on the Trinity river ; and this petition was not filed until the 8th day of March, 1858.

We are of opinion, that the court below did not err in considering the claim of the plaintiffs as too stale to be enforced. The petition discloses the fact,- that Robert Gr. Watson was informed of the death of Alford, very soon after his decease, and that soon after the death of Alford, the claim of Watson was placed in the hands of an attorney, in Houston county, where the estate of Alford was being administered. There is, therefore, no excuse shown by the plaintiffs, for the long delay in the assertion of the rights of Robert Gr. Watson, upon the contract. The judgment of the court below is affirmed.

Judgment affirmed.