Munson v. Terrell
| Decision Date | 18 December 1907 |
| Citation | 105 S.W. 1114 |
| Parties | MUNSON v. TERRELL, State Land Com'r, et al. |
| Court | Texas Supreme Court |
James & Yeiser, for relator. Wm. E. Hawkins, Asst. Atty. Gen., and Gregory, Batts & Brooks, for respondents.
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 of a certificate granted by special act of the Legislature to William A. A. Wallace for 1,280 acres of land. Sundry parties are alleged to be claiming parts of the survey, and they are made co-respondents.
The land was surveyed by virtue of the unlocated balance of the certificate on the 2d day of August, 1892, and the field notes were returned into the General Land Office the 20th 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 any "officer of the state government, except the Governor of the state," was in force (Laws 1892, p. 21, c. 14), and went into effect before the field notes were returned. After a party has slept upon his rights for a period of 15 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. De Poyster v. Baker, 89 Tex. 155, 34 S. W. 106; People v. Chapin, 104 N. Y. 96, 10 N. E. 141; 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 5 years after the longest period allowed by the statute of limitation for the institution of suits in this state; and 11 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 co-respondents. The co-respondents pleaded the statute of limitation as in case of an action of trespass to try title. We are...
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