G. W. Glasscock v. Samuel Nelson, Adm'r, and others, 26 Tex. 150

Roberts, J. The instrument from John Smith and wife to Glasscock, although in • the shape of a- deed, was an executory obligation for one-fourth of a league of land out of the headright claim of John Smith. It was executed on the sixth day of July, 1836, before the land was located. It does not identify any particular tract then expected to be located. It contemplated the surveying off and designating the boundaries of the particular fourth of a league as soon as practicable, and the execution of another deed if necessary upon the request of Glasscock.

Smith and wife bound themselves to make this sale good, and for all costs and damages that might accrue from its failure. As soon as the headright was located in Robertson county, which was as early as in May, 1840, Glasscock had a right to have his fourth of a league designated by boundaries, and a deed therefor executed to him. Upon Smith’s failure then to do this, he might have filed his suit for a specific performance, or his action for damageg for the failure to make the “sale good.” In March, 1842, the deed was executed by John Smith to John D.

Smith, the land having been previously patented and all of the balance of it conveyed to Taylor and Potter. This deed to John D. Smith is now assailed upon the ground that John D. had notice of the sale to Glasscock, which notice was proved on the trial. The suit instituted by Glasscock for that purpose, and for a specific performance and partition, was filed in October, 1852—more than twelve years from the time he might have demanded a title or damages—more than ten years after the land had been patented and all of it deeded away by John Smith to Taylor, Potter and John D. Smith, which is evidenced by John D.

Smith’s deed proved and recorded in the proper county in March, 1842, and seven years after the death of ’both John Smith and John D. Smith. It is contended by appellees that this is a stale demand, for which a court of equity will grant no relief. The only diligence of Glasscock in following up his claim is the recording his deed or obligation in Milam county in November, 1838, the land not being in that county, and also recording it in Bobertson county in March, 1851, and the institution of this suit in October, 1852.

By the depositions of two witnesses, taken in October, 1853, Glasscock proved transactions that took place in 1836 and 1839, which established that John D.

Smith had notice of Glasscock’s purchase from John Smith, and that the purchase money for the land had been paid at the execution of the instrument. “ Sir Thomas Plumer, Master of the Bolls, after reviewing the cases in which lapse of time had been considered a bar in those courts, (courts of equity,) stated the effect of them to be, first, that they have ever, upon general principles of their own, even when there was no analagous statutable bar, refused relief to stale demands, when the party had slept upon his right; and secondly, that after a bar has been fixed by statute to the legal remedy, the remedy in a court of equity has, in analagous cases, been confined to the same period.” (Angell on Lim., 27.) Admitting, then, that Glasscock’s right to recover damages for the non-performance of this obligation had matured by the 5th of February, 1841, when our statute of limitations was passed, his action for the same would have been barred in four years thereafter.

We have no decided case in which this rule has been strictly adopted in reference to the equitable remedy for specific performance. Indeed, there has been sometimes a disinclination manifested to fix a definite period as a bar in such case, and an indication that each case should, in some degree, depend on its own peculiar circumstances. (De Cordova v. Smith, 9 Tex., 147-8.) The reason of this is because there may be equitable circumstances which may account for the delay, which would, when they exist, be cut off by a fixed period. (2 Story Eq. Jur., 771.) But in the case of Smith, v.

Hampton, which is similar to this in many respects, it is said, “ where time is suffered to elapse and throw darkness over the transaction, the presumption is that some other arrangement has intervened by which former agreements have been annulled.” And it was then laid down and acted on, that “ where the purchase money has been paid by the vendee, according to the terms of the contract, then the longest period of limitation known to our laws, to wit, ten years, must elapse before he can be refused the aid of a court for specific performance.” And upon that rule the relief was refused in that case. (13 Tex., 468.) See also Nichols v.

Pilgrim, 20 Tex. R., 428. Unless there were equitable circumstances of no ordinary character to excuse or account for the delay, ten years would certainly be most ample time within which the remedy should be pursued. Ho such equitable circumstances appear in this case; but, on the other hand, the great delay has been attended by such events as make it peculiai’ly appropriate for a court of equity to stay its helping hand. The judgment is therefore affirmed. Judgment affirmed.