Ann Walling et al. v. J. C. Wheeler et al., 39 Tex. 480

Walker, J. Jesse Walling entered into a contract, with J. M. Irish and John McLanahan, dated on the seventeentli 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 limitation 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.