W. B. Munson v. J. J. Terrell, Commissioner of the General Land Office et al., 101 Tex. 220

Me. Chief Justice Gaines delivered the opinion of the court. This is a petition for the writ of mandamus to compel the Commissioner of the General Land Office to issue a patent to relator upon a survey on Mustang Island which was made by virtue of the unlocated balance to a certificate granted by special act of the Legislature to William A. A. Wallace for 1380 acres of land. Sundry parties aré alleged to be claiming parts of the survey and they are made corespondents.

The land was surveyed by virtue of the unlocated balance of the certificate on the 3d day of August, 1893, and the field notes were returned into the General Land Office the 30th day of the same month. So that on the day the field notes were returned, if found correct, the relator or those under whom he claims, were entitled to demand that a patent be issued by the Commissioner and, if refused, to apply for a writ of mandamus to compel him to do so.

The law which authorized this court to issue a writ of mandamus against anv' “officer of the state government, except the governor of the state” was in force (Laws 1893 p. 31), and went into effect before the field notes were returned. After a party has slept unon his rights for a period of fifteen years, ought that court to undertake to afford him relief? We think not. Laches is an obstacle to the remedy of mandamus—dependent upon the circumstances of the particular case (Depovster v. Baker, 89 Texas, 155; People v. Chapin, 104 N. Y., 96; Chinn v. Trustees, 32 Ohio St., 236; People v. Common Council, 78 N.

Y., 56; State v. Kirby, 17 S. C., 563.) The petition in this case was filed five years after the longest period allowed by the statute of limitation for the institution of suits in this State; and eleven years after the action would have been barred if applicable to the Commissioner of the General Land Office. There are no allegations in the petition whatever which offer any excuse for the delay. But laches has been pleaded in this case, neither by the Commissioner of the General Land Office nor by the corespondents.

The corespondents pleaded the statute of limitation as in case of an action of trespass to try title. We are therefore confronted by the question: Will the court apply the rule in the absence of pleading of its own 'motion? “The doctrine which is conceived to be the better one, that laches need not be pleaded to be available as a defense, has not been universally accepted. It is held by many respectable authorities that in order to secure the benefit of this defense, advantage of it must be taken by some appropriate method of pleading.” (12 Ency.

Pl. & Prac., 830.) In equitable suits in this State laches if relied on as a defense must be pleaded. (DeWitt v. Miller, 9 Texas, 239; Vardeman v. Lawson, 17 Texas, 17.) But it is not so in a proceeding for a mandamus. It is an extraordinary writ and rests largely in the sound discretion of the court. An application for the writ should hot .be granted, unless the petition shows every fact, necessary to entitle the relator to the relief sought. In Teat v. McGaughey, (85 Texas, 478) we denied a writ of mandamus on the ground of laches.

We have examined the record in that case and find that laches was not pleaded by respondents. (See also on this point Arberry v. Beavers, 6 Texas, 457.) It would seem that limitation of four years would be available to defeat the action, provided it had been pleaded. (Rev. Stats., art. 3358.) The petition for mandamus is dismissed without prejudice.