On Motion for Rehearing.
Appellees have filed their motion for rehearing, and therein they first insist that this court erred in holding, in its original opinion, that the suit of appellant was a suit for specific performance of a contract for the conveyance of real estate,. and that the ten-year period of limitation, as prescribed by article 5692, Vernon’s Sayles’ Civil Statutes, only applies to such contracts, and that the four-year statute of limitations has no application to the same.
We may answer this contention, first, by stating that appellant, by his reply to the motion for' rehearing, has directed our attention to the fact that in our original opinion we stated that appellees had pleaded the four-year statute of limitation in bar of appellant’s right to recover, and that we were in error in so stating. He points out that the only reference to the four-year statute of limitation to be found in appellant’s answer in the trial court was contained in their exception to the plaintiff’s petition, and that the trial court 'overruled said exception, and from this action of the court no complaint was made by appellees, and therefore such plea was by appellees waived, and that ap-pellees did not further plead said statute as a defense to the plaintiff’s cause of action. *598and the same is not now available to them as a defense.
After a reinspection of appellee’s answer, we find that appellant’s statement is correct, arid therefore we find that, as the four-year statute of limitation was not pleaded as a defense in the trial court, appellees cannot avail themselves • of such defense on appeal, and therefore, if for no other reason, the contention of appellees, and the finding of the trial court that appellant’s cause of action was barred by the four-year statute of limitation, must be overruled. But under the authority cited in the original opinion, as well as under the following decisions, to wit, Jordan v. Abney, 97 Tex. 296, 78 S. W. 486, at page 489, and Xeary v. Cummins, 28 Tex. 92-97, we hold that the plaintiff’s suit is one for specific performance of a contract for the conveyance of real estate, and that the four-year statute of limitation has no application to the same.
In the case of Jordan v. Abney, supra, it is said:
“That a contract between two persons, upon valuable consideration, that one will, at his death, leave property to the other, is enforceable, where no statute is contravened, is held by an almost unbroken current of authority, English and American. Such contracts, when sufficiently certain, have been held valid and enforceable, in equity as well as at law, whether they provide for the payment of money, or the leaving of specific property, or of all or a moiety of that which the obligor should leave at his death. They have usually been put in the form of agreements to bequeath by will, but this has not been regarded as an essential feature; agreements to leave the property, or that the obligee should have it at the death of the obligor, being held sufficient. * ⅜ *
“The legal effect of this kind of a contract is different from that given by law to mere statutory adoption, and we apprehend it has been through failure to observe this distinction that some of the courts whose decisions are referx-ed to have been led to the conclusion that such contracts are excluded by the statutes allowing adoptions. The latter, as we have pointed out, is not a contract, and statutes authorizing and regulating it do not undertake to regulato contracts. They are intended, rather, to give the right of inheritance, which does not arise from contract, but from the law, while rights such as those upheld in the authorities to which we have referred are created and fixed by contract.”
We think the conclusions reached, as expressed in our original opinion, properly disposes of the issues presented, and we therefore overrule the motion.
Overruled.