Oldham v. Medearis

• Court: Texas Supreme Court
• Writing for the Court: Denman
• Citation: Oldham v. Medearis, 39 S.W. 919, 90 Tex. 506 (Tex. 1897)
• Decision Date: 25 March 1897
• Parties: OLDHAM et al. v. MEDEARIS et al.

39 S.W. 919

OLDHAM et al. v. MEDEARIS et al.

Supreme Court of Texas.

March 25, 1897.

Certified questions from court of civil appeals of Third supreme judicial district.

Action by Horace Oldham and others against George Medearis and others. Judgment for defendants, and plaintiffs appeal. Case certified from the court of civil appeals.

J. W. Maxwell, J. Bouldin Rector, and Rector & Rector, for appellants. Geo. S. Walton, M. C. Granberry, and J. J. Faulk, for appellees.

DENMAN, J.

We will only state such of the facts contained in the certificate as we deem pertinent to the questions certified. On January 12, 1872, Horace Oldham and George Medearis purchased jointly a tract of land supposed by them to contain 380 acres, it being community property between them and their respective wives; and thereafter, having sold off 100 acres, they verbally partitioned the remainder, which they supposed to be 280 acres. In making such partition, they employed a competent surveyor to run the division line, and such line was run, with the intention on the part of Oldham, Medearis, and the surveyor of giving to each 140 acres of land, it being of uniform value, and each believed that the line so run gave to each 140 acres. The land partitioned, however, did not contain as many acres as the parties believed, and, owing to a mistake of the surveyor, Medearis got 140 acres, but Oldham only received 104 acres, in said partition. Upon the making of the partition, each of the parties, with his family, moved upon and actually inclosed and occupied as their homestead the land so set aside to him, and continued such occupancy for more than 15 years before Oldham discovered, by a resurvey, in 1893, that he had received in the partition only 104 acres. It appears that, after the discovery of the mistake, Oldham and Medearis, in October, 1893, entered into an agreement to arbitrate their differences, and that the arbitrators made an award; but the nature of the agreement and award is not stated in the certificate. Oldham and others brought this suit against George Medearis and his wife, seeking to enforce the award, and praying in the alternative for a repartition. The defendants, among other things, pleaded the three, five, and ten years' statutes of limitation. Plaintiffs filed a supplemental petition, the nature of which is not set out, but, as the certificate states that the "pleadings of the parties raised the issues hereinafter stated and certified," we will assume that it set up facts excusing the delay in the discovery of the mistake.

The first question certified is: "If Horace Oldham exercised due diligence in discovering the mistake in the partition of the land and the shortage in the land set apart to him, will the statutes of limitation apply and run against an equitable suit to correct said mistake and repartition the land?" In Brooksbank v. Smith, 2 Younge & C. 58, decided in 1836, Olderson, B., held that statutes of limitation did not begin to run until the mistake was discovered, saying: "Then, is the statute of limitations a bar to the remedy sought by this bill? It seems to me that it is not so. The statute does not absolutely bind courts of equity, but they adopt it as a rule to assist their discretion. In cases of fraud, however, they hold that the statute runs from discovery, because the laches of the plaintiff commences from that date, on his acquaintance with all the circumstances. In this, courts of equity differ from courts of law, which are absolutely bound by the words of the statute. Mistake is, I think, within the same rule as fraud." Citing this case as authority, in speaking of the statute of limitations, Story, in his work on Equity Jurisprudence (volume 2, § 1521a), says: "In cases of fraud or mistake it will begin to run from the time of the discovery of such fraud or mistake, and not before." The same doctrine is held in Grundy's Heirs v. Grundy, 12 B. Mon. 269, decided in 1851. In Smith v. Fly, 24 Tex. 345, decided in 1859, this court, through Wheeler, C. J., said: "In equity, as at law, the general rule is that the cause of action arises whenever the party is entitled to bring suit, or as soon as he has a right...