While this suit is in form an action of trespass to try title, it in effect seeks the enforcement of an executory contract for the conveyance of the land. The patent issued to Absalom Williams on the 26th day of November, 1841, and was recorded in the county of Jefferson the 11th day of December, 1841. From the allegations contained in the petition it is shown that Hezekiah Williams returned to Louisiana in 1840, and there died May 7, 1851. This suit was instituted March 29, 1876. If, under any circumstances, this suit could be maintained after so great lapse of time, the burden would rest upon the appellee to clearly and satisfactorily show that Hezekiah Williams had -complied with the terms of* his contract. In this particular the evidence is wanting in intrinsic force and merit, conducing as strongly to the conclusion that Grigsby was acting in his own behalf as in behalf of Hezekiah Williams in carrying out the contract. • And while it is n’ot necessary to base the decision upon the ground that the judgment in this respect is not sustained by the evidence, yet an examination of. the evidence as disclosed by the record leads inevitably to that conclusion.
Hezekiah Williams did not comply with the terms of his agreement as to the five and one-half labors first located in what is now Hardin county, while it i^ shown that Grigsby paid the government dues upon the land- in controversy, taking the receipt therefor in his own name. Besides, Absalom Williams afterwards conveyed a portion of this land to Grigsby, which is consistent with the presumption arising from the lapse of time, that the matter had been otherwise adjusted and settled by the parties.
*629A right of action accrued to Hezekiah Williams, if ever, upon the issuance of the patent in 1841. Pridr as well as immediately and continuously after that time, Absalom Williams treated the land as his own, selling and conveying portions thereof upon different parts of the grant, in such way as to be inconsistent with the idea that he recognized any right in Hezekiah Williams to an undivided half interest in the land. If, under the circumstances as developed in this case, Absalom Williams could be considered is having accepted the legal title to the extent of one-half in trust' for Hezekiah Williams, then he repudiated that trust from the outset by the manner in which he conveyed portions of the land on different parts of the grant. Besides, it appears that he occupied the land, claiming and dealing with it in every respect in a manner entirely inconsistent with his recognition of the existence of any such trust. Then it would seem that limitation commenced to run against Hezekiah Williams from and after the issuance of the patent.
The rule is well settled, that where the holder of a bond for title has performed his part of the contract, the longest period known to our statute of limitations must elapse before the court will refuse a specific performance. Reed v. West, 47 Tex., 248.
It has been frequently said that the courts were not inclined to fix a definite period as a bar to cases like this, the reason being that there might exist such equitable circumstances as would excuse the delay.
In Glasscock v. Nelson, 26 Tex., 154, the court said: “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.”
Considering that limitation commenced with the issuance of the patent, it had run over nine years at the death of Hezekiah Williams. And as no administration is shown to have been had upon his estate, following by analogy the statute of limitations, it commenced again to run May 7, 1852. Pasch. Dig., arts. 4607, 4617.
From thence until suspended by the civil war, limitation continued to run for nearly nine years, and was the third time put into operation March 31, 1870, and continued for about six years, when it was again suspended by the institution of this suit. Thus it appears that during the time from the issuance of the patent to the institution of this suit, that the statute of limitations was in active operation for more than twenty-four years. No such extraordinary equitable • circumstances are made manifest in this case as will account for or excuse such a delay. After so great a lapse of time, *630the presumption will generally be indulged that some other arrangement was consummated by the parties which satisfied or annulled the bond.
[Opinion approved March 20, 1883.]We conclude, and so report, that the judgment of the court below, so far as it relates to the appellants now before the court, be reversed, and that the supreme court now here render such judgment as should have been rendered by the court below. That is, that the plaintiff (below) Samuel II. Williams have and recover nothing of the defendants.’(below) Wm. McFaddin, John J. French, Jeff. Vestal and B. II. Leonard by reason of this suit; that they go hence, and recover of said Williams all costs in this behalf incurred.
Reversed and rendered.