Rucker v. Dailey

Citations

• 66 Tex. 284
• 1 S.W. 316
• 1886 Tex. LEXIS 504

Syllabus

<p>1. Limitation—Demurrer—Revised statutes, article 3226, construed—Practice —Plaintiff’s amended petition alleged that in 1855 the owner of two land certificates entered into a written contract with him, in consideration of §100, to make him a title to two hundred acres of land, to be selected out of the tracts located by those certificates; that, at the same time, he contracted to convey to plaintiff one-half of the land located under one of the certificates and one-third of that located under the other, in consideration of plaintiff’5 locating the certificates, the conveyance to be made when patents to the land had been obtained ; that the lands were located according to contract, and patents were delivered by plaintiff in 1872, the owner still promising to execute deeds to plaintiff’s interest according to contract; that the owner, in 1873, conveyed the two tracts to parties who had notice and paid no consideration. The amended petition was filed in 1884, and stated that the original petition was filed in 1880. Held:</p> <p>(1) Prior to the adoption of the Revised Statutes the obligor held the portion of the land he contracted to convey to plaintiff in trust for the benefit of plaintiff, and so long as the trust relation was recognized by the obligor, the statute of limitation of ten years did not run against the enforcement of the contract. (De Cordova v. Smith, 9 Tex., 129 ; Glasscock v. Nelson, 26 Tex., 150, etc.)</p> <p>(2) The statute began to run from the repudiation of the trust by the sale of 1873.</p> <p>(3) A defendant setting up the statute of limitation by demurrer, must si J -v that, on the face of his adversary’s pleadings, the action is barred. The amended petition claimed on its face that suit was filed before the action was barred.</p> <p>(4) The Revised Statutes apply to claims against which limitation had commenced to run before their adoption, only when they prescribed a shorter period of limitation than did the old law. (Art'. 3226.) In this