
    De Cordova, Adm'r, v. Smith's Adm'x.
    A court of equity will never decree performance where the remedy ip not mutual or one party . only i*' bound by the agreement. But, Quert t Ah to the application of this rule
    . It is an a'-kuou lodged rule of equity jurisprudence, that- a party entitled to a specific conveyance of property, personal or real, will not be permitted to hold back from an assertion of Ills rights, and speculate upon tho chances of such changes as may decide whether it would bo to his interest to have tho conveyance made; but he is required to be vigilant and prompt in the assertion of those rights; and if changes have occurred during the hvnse ol‘ tim«* in the value of the property b> be conveyed, or in the consideration to be paid, a court of equity will always refuse its aid and leave tho party to seek redress, where the law had loft him, by a suit for tho breach of the covenant.
    Lapse of time will create a pre.-umption that lie- parties have waived or settled their rights, and stale claims, when brought iuto a Court of Chancery, are received without iuvor and entitlod to but little consideration, unless attended with circumstances that will repel such presumption. (Note 3A)
    
      V¡hovo tlmro is no express limitation to the remedy, as for a specific performance of an exe-cutory contract for the solo of kind, the, bettor authority scorns to lie that a point of time should be a •smned analogous to tho law of limitations of the forum. But, Querei As to the application of this rule in practice.
    If a party applies for relief in equity after being guilty of gross laches, or after a long lapse nf time unexplained by equitable circumstance, his bill will be dismissed, except where a part lias been performed or paid, in whielicases- the defendant will bo decreed to refund, to make compensation, orlo a specific, performance.
    Taking out a patent in his own name by a trustee, when not contemplated by the trust, manifests an intention to claim and enjoy the kind as his own; and lapse of time from that date, unexplained by equitable circumstance, imputes laches to the cestui que trust, and after a time foot yot definitely settled) bars the equity. (Note 33.)
    Circumstances which, after tho lapso of ten years or thereabouts, justified the presumption of a mutual abandonment of an executory contract relating to lands. (Note 34.)
    This was an action, commenced in January, 1848, upon a covenant, in the following words:
    Kepublto op Texas, \ This agreement, made aud entered into this tlie Gounty of Bexar, j second day of April, 1838, between J. W. Smith on tlie one part and Joseph Baker on the oilier part, witnesseth, that whereas the said Joseph Baker selected and improved a tract of land lying oil the Salado creek, whore the Gonzales road crosses said creek; and whereas tlie said tract of land has boon located by a certificate in tho name of said Smith, as assignee of -: now it is agreed on tlie part of said Smith, and he hereby obligates himself to perform'tlie same, that, as soon as a survey of said tract is made lie is to convey to the said Baker all tlie interest thereby acquired by said location, it having heen hitherto understood aud agreed upon between the parties that the location is made for the benefit of said Baker. It is further understood and agreed on between tlie parties that whereas the said John W. •Smith has, in his own name, a transfer of a headlight claim for one league and labor of land, being the headlight of Casimero de la Garza, which is really the property of said Baker, and on which a certificate has not yet heen granted: now if the said claim should pass the Board of Band Commissioners, then the said Smith is (o receive it in exchange for the one located on tlie said tract of land, for which lie is in that case to make a lawful conveyance to said Baker; hut in case it should not pass the Board of Band Commissioners, lie is to lift said claim now located there and locate in (lie same place two-thirds of a league certificate belonging to said Baker which are left with said Smith. Done in San Antonio on the above elate aud signed, '
    ' JOHN W. Smith, [seal.]
    
      Witnesses: / John S. Simpson, [John McCreary.
    Tlie plaintiff averred that prior to the second day of April, 1838, Baker had selected and improved Hie land in question, aud that in consequence he was entitled to a preference right to the land under the constitution and laws of the Republic; that John W. Smith located said tract of land by virtue of a league certificate issued in the name of Maria Gertrudes de Aleuez, and afterwards obtained the patent for the same; that in. making said location Smith was acting as agent and in trust for Baker; and that the writing was entered into to evidence that trust, and lioso held the property in trust until his death in 1845; that M. J. Smith became the administrator of J. IV. Smith, and finding among the assets of Smith the patent-, site caused the said tract of land t-o bo inventoried as Smith’s property, and under an order of the Probate Court, on the first Tuesday in September, 1847, sold the said property at public auction for 85,400 — one-fourth cash, and the balance secured by notes and mortgages of Meads and the other purchasers.
    The petition also averred that the representatives of Baker, not being prepared to take file necessary steps in regard to 1 heir rights, that Augustus Fisher, acting- for Baker’s estate, and D. C. Vauderlip, acting for Smith’s estate, entered into the following- covenant:
    State of Texas,! TVhereas the heirs of Joseph Baker, deceased, have County of Bexar, j preferred a claim against the estate of John TV. Smith for one'league of laud situated on the Salado below the. Gonzales road, pal en ted to John TV": Smith as assignee of Maria Gertrudes do Alcncz; and whereas said land has been advertised for sale by order of the Probate Court of Bexar county, and to prevent au injury to the sale by (lie conflicting claims, it is hereby agreed between the counsel of said parties that said sale'shall proceed according to said order; that if hereafter the heirs of said Joseph Baker shall produce evidence of an equitable title to said laud, and establish the same in a court of justice, the proceeds of said sale, after deducting the necessary expenses of tiie division and sale of said land, shall be a valid claim against the estate of said John TV. Smith, deceased, if the title proved will so warrant it. This agreement shall not be construed into au acknowledgment of any right of the heirs of Joseph Baker to said land, nor shall it deprive the administra- or of the estate of John TV. Smith, deceased, of any legal defense she might make otherwise to said claim.
    D. C. VANDERLIP,
    Att’y for estate of J. W. Smith. Augustus Fisiieu,
    Att’y for the heirs of Joseph Baker, deceased.
    San Antonio, Sep. 6,1847.
    The petition charged that since the death of John TV. Smith large debts have been exhibited and established against his estate; that his estate was much involved in litigation, and generally all the circumstances which constitute insolvency; that to be rated as a creditor would subject the plaintiff to interminable delay and loss. Offering, therefore, to pay for the certificate, if it had not been paid for, lie prayed for an injunction against the administratrix and the purchasers, in order that the trust fund might he secured until the final hearing.
    The injunction was granted, but dissolved upon the coming in of the answers; afterwards it was conditionally renewed, but the defendant, Maria J. Smith, allowed to collect the purchase notes and mortgages, upon giving bond and approved security. So that the controversy was about the fund, die rigid depending upon Baker’s estate establishing au equitable title to the laud.
    The answer denied the agency of Smith in originally making the location, and treated the contract as a sale negotiated after the location'. The answer also treated the contract as containing an obligation or condition precedent on the part of Baber in reference to the certificate of Casimoro de la Garza. To resist the specific performance the statute of four years and time generally was relied on.
    The plaintiff proved the contract declared on ; the location of the league of land in controversy; the field-notes dated 1st June, 1888 ; the patent to Smith dated 9th June, 18-11; notice from S. TV. Baker, one of (he heirs of Joseph Balmr, asserting the right of Baker to the land; the power of attorney from S. TV. Baker to Augustus Fisher; the agreement between Vauderlip and Fisher, and au ‘‘agreement that Vauderlip had all the power which the administratrix “could confer; and that he acted miller her immediate direction; and that “Fisher had like power;” that Baker improved and settled l lie league in controversy in j 8.‘>7, and that it was always called the Baker league ; that his house was about the middle of the league; that the account of sales and expenses difelo>ed in M. J. Smith’s answer was correct; that since the dissolution of the injunction she had collected the entire amount.
    The defendant proved Smith’s application for a certificate for.Casimero de la Garza, (the hoard adjourned the question, but never rejected the certificate;) that a short time after the issue of llio patent to Smith Smith conveyed to Baker t wo t facts of land for one-third of a league eacii, for which a money consideration was acknowledged; that pending the contestation about Smith’s succession Baker visited San Antonio, and Yanderlip mentioned to him that among Smith’s papers there was a small note and account, and Baker admitted some indebtedness, but said nothing about his claim to the land; that Mrs. Smith qualified as administratrix in June, 1847, and VanderKp being cross-examined sai l there was a great deal of correspondence between Baker and Smith; that Smith was a careful preserver of papers, and he found no trace, or mention of the transaction in question; (hat the laud in 1838 was only worth a few hundred dollars, and it is now worth live dollars per acre.
    It was also proved that the administrator of Smith had delivered to the administrator of Baker throe certificates for one-third of a league each. But to the admission of this proof the plaintiff excepted.
    The plaintiff, as rebutting evidence, proved that the oiiljr certificates issued to Baker, except- his own headlight, wore oue-third league to him as assignee of Formen Martinez, one-third league to Andrez Varciuez, and one-third league 1 o him, as assignee of EsmerizUdo Buiz; also proved ail augmentation to-John TV. Smith, as administrator to Kuiz, of two-thirds of a league, all of which certificates were confirmed; and also proved that J. Baker became a Spanish translator in the land office iti 1839 or 18-10, and continued there as translator for several years; that ho was a careless, improvident man; that Smith vas a keen shrewd man; identified Baker’s improvement on the l>lat; that t lie field notes in the patent were, in the handwriting of Woodhouse.
    The plaintiff asked the court to instruct the jury:
    1st. That it belongs to the court and not to the jiuy to construe and determine the legal effect of (lie contract.
    2d. That by the contract of Smith and Baker declared on, Baker was not hound to the performance of any act, or thing, or payment as a condition precedent to making the title-
    fid. That by said contract Smith was hound to convey mito Baker the land therein described; that it was a trust estate, held to the use and benefit of Baker, and lie was hound to make a title so soon as the same was surveyed, provided Casimero de la Garza’s certificate passed the hoard, (from the word “provided ” added by the court.)
    I give the above charge with the proviso.
    
    Tiros. J. Devine.
    4lh. That (lie contract is a covenant under seal, and that in order to prove a release of said contract, it must have been by an acknowledgment of the same by Baker of equal solemnity, i. e., a writing under seal.
    fitli. That although the headlight certificate of'"Casimero de la Garza might not. have been granted, it was the duty of John IV. Smith to locate the two certificates of a third of a league each, belonging to the said Baker, if the same were in Smith’s possession and placed there by Baker for the purpose.
    Glh. If the jury believed that John W. Smith undertook to establish the headlight certificate of Casimero as the agent of Joseph Baker, it was liis duty to use'due diligence to establish said certificate, and if ho did not use due diligence to establish the same, his negligence could not result to the injury of Baker.
    I decline to give the 4th instruction.
    Thos. J. Devine.
    
      7th. The delivery of the three certificates of a third of a league each by the administrator of John W. Smith to the administrator of Baker’s estate, and after the land had been patented, did not at all affect the right of the estate of Baker to the land in controversy.
    8th. That under the constitution and laws of Texas, if from the evidence the jury believe that Baker had his improvement upon the land in controversy lie had a preference right over others in locating said lands.
    I decline giving the 7th and 8th charges.
    Thos. J. Devine.
    9th. Though the certificate of Casimero do la Garza may have been rejected or never granted, it was the duty of John W. Smith to locate such certificates as remained iu his possession from and after the date of the contract upon the land in controversy, and if he possessed such certificates and neglected or failed to do so the same did not result to the injury of Baker, provided they were the certificates alluded to in the contract as a two-thirds of a league certificate. (From the word “provided” added by the court.)
    Thos. J. Devine.
    10th. That the contract in question is not vague and uncertain, but clear and specific in its terms, and free from ambiguity, and of the legal import defined in instructions two, three, and four, if the jury believe it was intended to embrace the land in controversy.
    I decline giving the 10th charge.
    Thos. J. Devine. '
    And for the defendant the court charged— *
    1st. That a contract which is sought to be specifically executed ought not only to be proved, but the terms of it should be so precise that neither party could reasonably misunderstand them. If the contract be vague or uncertain, or the evidence to establish it be sufficient, a court of equity will uot exercise its jurisdiction to enforce it.
    2d. That a party seeking for the specific performance of an agreement must show that he has performed or offered to perform on his part the acts which formed the consideration of the alleged undertaking on tiie part of the defendant.
    3d. That if circumstances should have so changed that the object of the party can no longer be accomplished, and he cannot he placed in the same situation as if the contract had been performed in due time, iu such case equity will not relievo the party by decreeing a specific performance.
    411). When a considerable length of time has intervened, where the party demanding a specific performance has failed to perform his part of the contract, and a demand is made after great change in the title and value of the land, and there is a want of reciprocity in the obligations of the respective parties, a court of equity will not interioro.
    There was a verdict for the defendant, motion for new trial overruled and judgment accordingly. The appellant assigned ten errors covering the points made in the court below.
    
      I. A. &r G. W. Paschal, for appellant.
    I. It can scarcely be necessary to contend that this is an instrument which acknowledges a trust made upon the best of all considerations, that of mutual confidence and a pre-existing right in Baker to secure the land in controversy by his own headlight. The contract acknowledges this fact and the proof establishes it.
    The contract was not one of mutual obligation iu which any conditions were imposed upon Baker, but one in which every act was to be performed by Smith. The payment for the certificate did not rest upon Baker, but was in Smith’s own hands, he holding the certificate as well as the land iu trust.
    And first, if the certificate of Casimero do la Garza passed the board, it was to be exchanged for SmiLh’s certificate, which was to be located in lien of it; and in obtaining this claim which, although the property of Baker was assigned to Smilh, Smith undertook to act as attorney in the premises, as appears irom the contract and evidence.
    But should the claim of De la Garza fail, then Smith was to withdraw his own cerlilieato and locate in lien thereof two one-third of a league certificates, which Smilh held as Baker’s property. It is difficult to see how any misconslrucl ion of such a contract could originate iu any mind.
    It can scarcely need authorities to support the legal proposition that no matter in what manner Smith afterwards procured'tlie title or patent, the trust attached. He .held the property for his cestui trust, Baker, and Baker was entillcd to a specific performance of his contract.
    II. It only remains to inquire whether the plea of the statute of limitations or the question of time in the manner insisted upon iu the answer would avail the defendant Smith. This involves the question as to whether the instructions of the district judge as to time were correct. It is respectfully insisted that the evidence does not warrant said instructions.
    As to 1 he statute of limitations we doubt not but it received the correct interpretation by the chief justice of this court iu the case of Hemming k. Zim-merehille. (4 Tex. B., 160.) The chief justice says: “ It will be seen by reference to the statute of limitations that in no one of its provisions does it “ include an action for the specific performance of agreements for the trans- “ for of property. The laws prescribing'such rules nnistbe sought elsewliei’e.” The chief justice then proceeds with the review of the authorities, (against the conclusions of which he expresses some doubts,) and concludes: ‘‘The “ limitation on his light of actijudid not commence its operation until the veu- “ dor had indicated an intention to refuse performance or to claim the properly as his own. (7 Johns. Ch. IL, 90; Chevos B., 22, 23; 2 Bich. Eq. B., “133: 20 Johns. B., 33; 19 Verm. B., 526; 6 B. Mon. B., 479 ; and 1 Bice, “Eq. It., 373.’’)
    But for the doubts expressed by the chief justice, and my having heard that the rule thus so correctly stated has perhaps been qualified, and, as claimed by some oí the profession, overruled in cases at Galveston and Tyler, which I have not seen, I should not deem it necessary to notice further the authorities, parfieula-ly since the court is so fully iu possession of my researches iu the printed brief in the case of Bissel v. 'Thomas Haynes et at.
    
    I think the rule, as to courts of equity being controlled by time or the slalene-.v, of the demand, lias been correctly stated by Judge Story in his Equity Jurisprudence, section 1,520, viz: “That courts of equity do not act so “ much in analogy to tlie statutes as iu obedience to them.” (See Hovendon v. Eord Amnesty. 2 Sell. &Lcf., 007 to 030.) And wherever a court of equity refuses its relief merely iu consequence of tlie laches of a party, it is where the court of common law would have concurrent jurisdiction and tlie remedy is barreda! law, or where the circumstances raise a strong presumption of payment and satisfaction; in other words, where there is an apparent want of equity in tiie party seeking relief. (Piatt v. Vattier, 9 Pet. B., 410; MeKnight v. Taylor, 1 Howard, 101, which is a strong illustration of the rule.) And thus, in a very early ease, Smith v. Clay, Ambler, 645, Lord Camden especially puts the decision on the ground that a bill of review would not be entertained afler twenly years, because twenty years by the statute would bar a writ of error. And this was the ground upon which Lord North put the case of Edward ?>. Carrol iu tiie House of Lords. And see Bond v. Hopkins, 1 Sell. & LoEvoy, 4*29; note 3, to2 Story Eq., sec. 1,520.
    The 1520th (a) article of Judge Story’s, which was charged by Judge Devine, was not. the work of the author but of the late editor. Tlie principle, if staled as a mere abstraction, is not corroborated by any particular case, certainly cannot control the ease under discussion.
    It, may be admitted that where “tlie relation of trustee and cestui que trust “ is no longer admitted to exist, or time and long acquiescence have obscured “ the nature and character of the trust, or the acts of the parties, or other cir- “ cumstauces give rise to presumptions unfavorable to its continuance, in all such “cases a court,of equity will refuse relief upon the ground of lapse of time and “ its inability to do complete justice ;” and yet it'would not follow, that, in every case where the statute of limitations would bar an action for damages that a specific performance would not be decreed, because it would be impossible for a court of equity to do justice.
    The first case cited to support the proposition (Provost v. Gralz, 6 Wheat. R., 4S1; 5 Coud., 142) is rather a decision upon the failure of proofs than upon the principle; an unwillingness to presume fraud against the dead rather than to allow fraud to avail under a pica of time. It is emphatically stated that “in general length of time is no bar to relief in the case of a trust “ once clearly established.”
    In the case of Attorney General v. Fishmonger & Co. (5 Mylne & Or., 10,17) it will be seen that four hundred years had intervened, and yet the principle decided was in relation to the existence of the trust, and not anything to excuse the trustee, when once the trust is clearly established. And that every case depends upon its own peculiar circum-tances, see Boone v. Chiles, 10 Pet. R., 177; Michaud v. Girod, 4 How. R., ¡559, c-t seq.
    
    It may safely be said that, as a general principle, the statute of limitations will not run against a trust, clearly proven, nor will the law presume, paj meut from length of time merely. (See Jones v. Tuberville, 2 Sumner’s Vesoy, 11, and notes; and see Alley v. Drsoliamps, 13 Ves., 225; Hertford v. Boone, 5 Ves., 719; Omerod v. Hardman, 5 Ves., 722; Harrington v. Wheeler, 5 Ves.. 080; Brew v. Hanley, 0 Ves., 075; Halsey «. Grant, 13 Ves., 73, Sumner’s edition.)
    I have thus cited the cases generally In ordSr that the correct rule may be seen. It seems to me, however, that the present, case is clearly embraced in the case in 4th Texas. It is a case where the plaintiff had nothing to do, but the defendant was bound to execute the title at all events.
    Nor can the defendant support his case by any of our statutes of limitations. For if the three, or live years’ statute, be relied on, no proof of possession sustained it, nor had Smith any legal tirio except that held in trust for Baker, which is not adverse. And although the defendant pleads “that her intestate “ did not agree or obligate himself to convey the title to the league of land “mentioned in plaintiff’s bill within four years after the issuing of the patent “ to the same, and next preceding the institution of this suit, and that ‘•more than one year in addition has elapsed, since the death of the defeml-“ant’s intestate, before the filing of said hill,” yet, we trust it has been sufficiently shown that this was a trust not intended by the statute, and, indeed, a stronger case than Zimmersehitte’s; besides, four years were not proven to liave intervened after the 9th day of June, 1841, when the patent issued, and the spring of 1845, when Smith died; nor did a year intervene after Smith’s deatli and the qualification of his administratrix in June., 1847, before the commencement of this suit in January, 1848. Therefore there is nothing, either in law or equity, on which to base a presumption of payment.
    
      J. Webb and J. W. Harris, for appellee.
    I. In tito first place, we assume that the contract had been annulled by the parties to it, and we think the circumstances connected with the case abundantly show it. At all events it was a question of fact for the jury to decide. They did decide it, by finding in favor of the defendant, and, in our judgment, their verdict is fully sustained by the evidence. It is true there is no direct, absolute proof of the rescission of the contract by the parties, hut the circumstances which cominee to establish Unit fact are so numerous and conclusive in their character that no reasonable doubt ca.n he left, upon the mind of its existence. It will be remembered that the land was surveyed In June, 1838, and that, by the contract. Smith was to convey his right to it, or to withdraw his own and place Baker’s certificate upon it,'immediately after that time; and yet there is not a shadow of proof that Baker ever required either the one or the other to be done previous to Smith’s death in 1845, a period of seven years, or during his own life, which lasted to a still later period.
    
      This, o£ itself, affords strong' presumptive evidence that the parties had abandoned the, contract; bnt when we add to it the further facts that, in 1841, three years ai'tee it- was Smith obtained from the General Land Office, where Baker was living and employed as a clerk, a patent for the land iu his own name, and that Baker made no objection t.o it and did not demand a conveyance of it to himself; that Smith, a .short time afterwards, conveyed to him two other tracts for one-third of a league each, being the precise.quantity that his cci tilica us would have covered, and that nothing was said then about the conveyance of this; that, after the death of Smith, Baker acknowledged to the attorney who was managing' the affairs oE the estate, that he owed Smith, aud would make arrangements to settle his indebtedness, without even intimating that he had a claim against the estate for this land; that he subsequently died, ■without ever having,'" up to that moment, asserted .-nch a claim, or giving the slight est not ice of its existence; that- Smii h, who was proved to be a man of great particularity in the transaction of his business and a very careful preserver of liis papers, ici’l. no memorandum or document, of any kind in reference to such -a claim, aitd that Baker, iu all liis correspondence with Smith, and it was extensive, never adverted to it or intimated that lie held such a demand; we say, that, when ail these, facts are put together, it is scarcely possible for the human mind to resist the conviction that these parties bad long before abandoned the contract, or knew that it had been settled and adjust,ed between them.
    II. But suppose that it was not abandoned, was it, a contract that a court of equity would enforce?
    There can be no question that, the plaintiff is not entitled to a specific performance of that part of it which relates to the conveyance of the laud by '¡Smith, because the precedent condition of De la Garza’s claim passing the Board of 1,and Commissioners was not performed. It was upon that condition that the ''ontrai't was based, and it was only upon the performance of it that Smith bound himself to convey the land. Had the conveyance actually been made at the time instead of a mere, agreement to oonvej’. Baker would, from the period of the failure of De la Garza’s claim to pass, have held the land in trii-t for Smith. A conveyance of-properly without consideration is always regarded as creating a resulting trust in favor of the grantor. (2 Story Bq. .hi.. ;irt. 1198, 1201; 5 Johns. Cli.' B., 1; 0 Cow. It., 706; and the authorities cited in 2 Story Kq. iu connection with arts. 1108, 1201.)
    The oilier part of the contract labors under the same difficulty. It was wholly without, consideration, and a court of equity would never enforce, it. Baker paid nothing to get the land from Smith, not even the surveying'fees.. The pnrniLe on the part, of Smith to give up the location and withdraw his certificate was wholly voluntary and gratuitous, and could not he enforced. <2 Store Kq. .In., art. 703 a. 787; 1 Johns. Oh. 11., 366; 12 Yes., 39,45; 1 Cow. It.. 711 ; Bi Ves. R„ 148.)
    It B unnecessary again to urge that Baker acquired no right to the land or to the location by virtue of any impnnament made upon it. And although he may lia’.e supposed when he. caused his jackal to be built that it would give him a preference in the location of the land, and Smith may have thought the same thing when he consented to yield his own location upon it, yet he acquired no stieh preference under the law, and that belief constituted no sort of consideration for the promise of Smith to yield it.
    HI. If we were to admit, however, that the contract when made was a good and valid one in law and equity, and that Baker at one time would have had the rigid to demand the specific performance of it, we should still insist that no such rigid existed at the time this suit was brought.
    IE tt parl.v to a contract fails to perform his part of it, or if by holding hack for a long t ime the other party is prevented from performing until (he circumstances in which the contract originated have entirely changed, he can get no aid from a court, of equity to enforce it, and especially when injury or injustice would result' from the enforcement of it. (2 Story Kq. Ju., art. 750, 760, 771; 14 Bet. B., 173 ; 9 Or. R., 471; 5 Yes. It., 720; 4Pet. R., 311.)
    
      The offer to pay now the value of Smith’s certificate at the time the location was made presents not a shadow of equity. At that time the whole country was open to location, lauds were in no demand, as good, perhaps better, might have been obtained in the same neighborhood had Smith then got the certificate of De la Garza to place upon them. Now the whole country is appropriated, aud lauds which were then selling for comparatively nothing are at this time commanding from four to live dollars per acre. It would be impossible therefore specifically to enforce this contract now without doing great injustice, even though the value of the certificate should be paid. (2 Story Eq., 750 a, 736, 737; 1 Pet. R., 376, 382; 5 Pet. R., 204.)
    IV. Again, tlie circumstance of Smith’s having conveyed to Baker, very .shortly after he obtained tlie patent for this land, two other tracts of a third of a league each, (as much as his certificate would have covered,) presents a strong presumption that they were given to him in the settlement of this very contract, aud Baker’s total silence upon the subject ever afterwards adds great weight to that presumption. It is true the deeds to Balter express a moneyed consideration for tlie land, but it by no means follows that that consideration was paid; if it were it might have been proved. The execution of tlie deeds with special warranty only is a circumstance to show that something else was meant by the transaction than au ordinary sale of land. At all events it was a proper matter for tlie consideration of the jury with the other circumstances of the ease.
    V. The claim was barred by tlie statute of limitations when the suit was brought. “Without entering into a more tedious discussion of the various relations which may exist between trustees aud their cestui qua trusts it is sufficient in this case to say that no such relations existed between these parties after the patent was obtained by Smith in his own name and with iiis own means in 1841. That act placed him in an adverse position to Baker in reference to this land, and if he had ever occupied (.lie relation of trustee lie then severed it, and from that moment the limitation commenced to run in his favor. The suit was not brought for near seven years after. (2 Story Eq., sees. 1530, 1520 a, and notes; 4 Tex. R., 165, and authorities cited.)
   Lipscomb, J.

From the terms of the covenant of John W. Smith with Joseph Baker and the circumstances which transpired between the date of its execution and the commencement of this suit can the aid of a court of equity bo invoked for a specific performance? or should the plaintiff be left to compensation in damages if any for its breach? This is tlie inquiry presented for' our consideration, and the fact that tlie land in question has been sold by tlie administrator of Smith under an order of sale made by the Probate Court, and the proceeds of that sale only, and not a conveyance of the land, is now .«ought, cannot divert our inquiry whether a specific performance ought under the"circumstances to be decreed if the land hud not been sold. Because if it would not, then the plaintiff has no right to (he fund he is seeking to have applied to his use.

I will examine first the objection presented on the face of the covenant. It seems to me to want au essential element in its structure to give it effect either against tlie maker or his representatives; it is wautiug ‘in not showing a valid consideration, and it wants mutuality. Smith is bound by it when it imposes no corresponding obligation on Baker.- Chauccllor Kent says that “It seems to be very generally and very properly laid down in the books that “a court of equity will never decree performance when the, remedy is not “mutual, or one party only is hound by the agreement.” (Parkhurst v. Van Cortlandt, 2 Johns. Chan. R., 282,) and lie refers to Arringer v. Clark, Bunb., 111; Troughton v. Troughton, 1 Ves. R., 86; Lawrenson v. Butler, 1 Sch. & Lef., 13; Bromley v. Jeffres, 2 Ves. R., 415. The chancellor assorts the same principle in Benedict v. Lynch, 374, same volume cited, and says that a contrary doctrine had been held in some cases in England, but that from the more recent decisions the principle he had laid down prevailed there now.

This is not however the ground on which I am instructed by my associates to-rest the decision of the court. We believe that our decision eau be placed more, sat isfaci orily on the intrinsic merits of the case, admitting that the covenant ought (o liave been specifically performed, and that it was a fair subject for the exercise of equity jurisdiction to compel such performance had the application been made within a reasonable time after the covenant had been, broken, or after the time when Baker could have demanded performance from-Smith. But if a party having rights will slumber on them for years, he need not be surprised when he wakes up to find that other rights have intervened to prevent the enforement of his own. Both courts of law and equity turn an-il uwilling .ear to those who show no vigilance in the assertion of their rights. By the covenant 'Smith was hound to convey to Baker as soon as the survey had been made. It appears from the record that this was done 1st June, 183S, and (lie patent to Smith bears date Oth Jane, 1841. The salt was brought to the Spring Term of the court,ISIS.

"What effect, this lapse of time, near ton years, should have on the equitable rights of the plaintiff will now lie considered. It is an acknowledged rule o£ equitable, jurisprudence that a party entitled to a specific conveyance of property, personal or real, will not be, permitted to bold back from an assertion of his* rights and speculate upon the chances of such changes as may decide whether It would he to his interest to have the conveyance made, but lie is required to be vigilant and prompt in flic assertion of those rights; and if change-- have, occurred during this lapse of.time in the value of the property to he com eyed, or in the consideration to he paid, a court of equity will always refuse its aid and leave the party to seek redress wlicro tlie law bad left him,, by a suit, for tlio breach of the covenant. Now it is a matter of history, and the fact s Í oo are established by the record, that for wars after this contract was entered into such was the uncertainty of the G-ovcrunicnt’s being able to sustain iiself, and tlie Indians were so troublesome in the neighborhood of ,81111 Amonio, that land was considered of very little value, and many would liave preferred an unlocated certificate to the best land in the vicinity of that place, belli 011 account of (rading it better and affording ail opportunity to locate in a neighborhood promising greater security. If the. covenant had been then satisfied, S111it.l1.could liave located other lauds of nearly equal value to the land which is t lie subject of this suit; but now an unlocate.d certificate would afford to his representatives no such advantage; tlie laud has appreciated near tenfold, and it would he wholly impossible to decree a specific performance upon any known principle of equity and do justice to the. representatives of Smith. This state of things could not have occurred had Baker, in the language of Lord Kenyon, (quoted by the master of the rolls in Milward v. Thanet, 6 Ves. R., 720.) '‘shown himself ready, desirous, prompt, and eagar” in the assertion of his rights. We therefore come to the conclusion that a*specific performance cannot be decreed.

There, is another aspect in which tins case may be presented that would bring us very satisfactorily to tlie same conclusion. It is an old and well established rtlie familiar to equity jurisprudence that lapse of time will create a presumption that the parties have waived or settled their rights, and such stale claims when brought into a court of cliaucery are received without favor-and. entitled to hut little consideration unless attended with circumstances that will repel such presumption. This doctrine will he found laid down by Chancellor Kent in Ellison v. Moffat, (1 Johns. Chan. R., 46.)and in Ardens’ Ex’ors v. Ardens’ Ex’or. (Id., 313.) It will be found to liave been uniformly acted upon and recognized by the court of chancery in South Carolina, (Riddlehover v. Kinuard, 1 Hill Ch., 378,) and in Sims v. Autrey, (4 Srobh. R., 117,) Chancellor Dargan, in giving the opinion of tlie appellate court affirming the decree of Chancellor Dunkin'made on the circuit, uses the following strong

language on this subject, the Chancellor following strictly the course of the decisions, makes these observations : “After the possession of twenty-five years “ the court will presume a sale by Hie executor for (lie payment of debts, an “ administrator da bonis non after Lyle’s death, a sale by such administrator, “ or almost anything else, in order to quiet the possession.” lie adds, “ This “ is strong language, but not stronger than is warranted by the authorities, or “ demanded by a stern, imperative, public policy.” And he says further : “ The law requires diligence in the assertion of a right by legal actions. Life 4 Ms short, parties and witnesses are mortal; memory is frail; written muni-“inenlsare. spread upon perishable materials, and are subject to many acci- “ dents ; and time throws a veil of obscurity over transactions of the distant 11 past; under circumstances like these, is it either unreasonable or unjust that he who has a claim should be required to assert it within a limited time?” This doctrine, in principle, is believed to prevail in some degree in every community of men, both savage and civilized; but in most if not'in all of tlie’States of the American Union a period of t ime has been fixed, upon by j udicial sanction, after which these presumptions wall arise. Such rule however as to the period of time, is not considered to have any iufinence beyond the jurisdiction of its own forum, and every court governed hy the rules of equity jurisprudence must adapt it as to the length of time to peculiar circumstances. The same learned Chancellor whoso opinion has been last cited says: “As to the pre-ciso timo at which they (presumptions) arise, each independent community “ must judge for itself. IVo have adopted the law of the mother country. In “ South Carolina, as in England, by the lapse of twenty years without, admis“sions, specialities and judgments are presumed to be satisfied, and trusts dis- “ charged.” The discussion of this subject ill the opinion of this court at its last term in Lewis v. San Antonio sustains the proposition stated hy the chancellor just cited, that each community may establish its own rule as to the precise time. It would, however, seem to us to he exceedingly difficult to lay down a rule that should he one of universal application. Each case would depend in some degree on iLs own peculiar circumstances. If, however, a rule should he adopted in analogy to the rule prevailing in England, there would he many and cogent reasons against adopting the precise time prescribed hy that rule. From the situation of our country, our records, muni-ments and evidence of title are not so permanent and well scoured as they are in old and well-regulated communities. And every one of observation would readily perceive and admit that there are more changes and incidents crowded into five years with ns than could occur in twenty in England or in South Carolina. It would seem then that (.ho principle could and would he better guarded at any rate until our population has become more permanent and society better regulated, tobe governed more by the peculiar circumstances than by any fixed rule as to time. The better authority seems however to be that a point of time should be as-mined analogous to the law of limitations of (ho forum where there is no express limitation to the remedy. The difficulty then is to determine to which law of limitation to refer as analogous to the relief sought. Hr. Angelí says (hat when a conveyance of land is the relief sought courts of equity will apply the statutory bar prescribed to the action of ejectment. (Angelí Lira. 25, see. 2.)

But suppose the case where there was no person in the actual possession of the land to which title was sued for, it maybe, doubtful whether either the five years that to the possessor gives a liar or the ten years that bars an entry would either of them apply; 'and if cither, which one. If the legal title should be considered as giving a constructive possession, perhaps the five years; if not, it is difficult to perceive how the ton years could apply to such a caso. If we had a statute of limitation that was express in barring the action, or one analogous, such limitation would lie a good defense, without resorting to any olheral tending circumstances. If we have none, express ov analogous, it would seem that we could Ifiy down the rule as to the time ourselves, (An- " Dim., 21, sec. 1,) but from tlie circumstances before noticed we feel uuwill-t.o do so.

There is another head of equitable jurisprudence that there can be no doubt had a common origin with all laws of limitation. We mean laches and neglect. 3Ir. .Justice Story says: “If lie (the party) has been guilty of gross ladies, or if “•he applies for relief after a long' lapse of time, unexplained by equitable e.ir- “ ctitnsianees, his bill will be dismissed, for courts of equity do not, any more “ than courts of law, administer relief to the gross negligence, of suitors.” To this rule. lie says, there is some qualification. (2 StoryDq., 771.) The qualification M-etns to be tills, that although there may have been ladies, yet, if a part 1ms been performed or paid, tluibill will not be dismissed, but the defendant. will he decreed to refund, to malve compensation, or to a specific performance. What ladies will be sufficient to defeat the equity depends upon circumstances. In the case cited, by Chief Justice ITcmphill, in Hemming v. Zimmerchitle, (4 Tex. R., 166,) the plaintiff had notice, that defendant had abandoned it is contract, did not. lile his hill for nearly a year afterwards; the delay wits held to lie. unreasonable, and the, bill dismissed. (Watson v. Reed, 1 Russ. & Myl., 236; 4 Pet. R., 311.) In the caso cited from 4 Tex. It. the court say: "In the cases generally whore the effect of ladies has been the “ subject of discussion the contract had not been fully executed by either party, “and Pne one against whom relief was sought had indicated by his acts or “expression ; Ids intention to disavow or abandon the contract.” ■ In the. case •miller coiifiiloralioii the obligee had nothing to do. If the exchange liad been made ¡i"'¡vea!ily to the contract títere would have been a full performance and execution of die, covenant; it it. was not made cadi party would have been in the same condition they were in before, as each would have the same land; anti when Smith indicated by his acts suchas a failure to convey as soon as the surrey had been made and lire taking out. tie> p-itent in his own name, ih • obligee, Baker, if lie wished to compel its o.nfor,- meiit, then should haw commenced suit. At all events, when Smith took th- patent in his own ltattf, and from that period, laches may bo imputed to him. it is, however, contend'd on the part of the appellants that Smith became the trustee for Baker, and held the land in trust, for him, and that it was a continued trust. The correctness of the principle is admit ted, if títere was nothing for Baker to do. But it. is material to inquire he v I mg, under the circumstances of this case, tli * (rust continued. In the *■■;,■ before, cited from 4 Tex. It. the court uses Urn following language : “in this ease, the vendee having performed ills “obligation, the. vendor’s subsequent possession or interest in the land was “held in trust, and in subordination to the superior equitable right of the “ vendee, and this possession would continue to maintain its fiduciary character “until the vendor would manifest an intention to claim and enjoy the land ¡is ■“his own. The possession would then become adverse.” To apply the prin-cipie : when Smith failed to make the conveyance, and took (lie patent out in his own name, the trust was at an end, ami he held adverse to Baker.

When tin1 circumstances, as presented by the. rerord in this ease, arc considered, they so strongly conduce, to prove that (he contract, had been mutually abandoned, that we have no hesitation in saying Unit such evll'iice, unrebut-ted, would have sustained a verdict of a jury for the defendant, had a suit been brought, on the obligation to recover damages for its breach. We will recapitulate tlie strongest, of this circumstantial evidence; it is the long acquiescence of Baker; the patent, recorded in the public archives of the <infry, which all persons are bound (o (alee notice; Baker's being a clerk in the land office; liis silence as to any right to the land or claim upon the estate when Vande.rlip told him that lie. was indebted lo the estate., which lie admit tod; the death of Smith and Baker, culling oil' the probability of better proof, before, this suit was commenced. And the record presents nothing on the part of .the appellant to rebut and explain this prima facie evidence of an abandonment. The judgment of the court below is affirmed.

Judgment affirmed,

Note 32. — Tinnen v. Mebano, 10 T., 21(5; Emmons v. Oldham, 12 T., 24; Smith v. ITampton, 13 T., 450; Iicdding o. Redding, 15 T., 219; Nichols u. Pilgrim, 20 T.. 420; Gibsou u. Pi for, 21 T-, 200; Glasscock v. Nelsou, 2G T.. 150; Carlisle v. Ilart, 27 T., 350; Geary v. Cummins, 23 T., 91; MeMasters v. Hills, 30 T., 591; Flemming v. Reed, 57 T.,152.

Note 33. — Turner v. Smith, 11 T., 020; Robertson -y. Wood, 15 T., 1; Grumbles v. Grumbles, 17 T., 472; Hunter v. Hubbard, 20 '1'.. 537.

Note 31. — Smith v. Hampton, 13 T., 459. Limitation will not commence to run until there is some act upon the part of the vendor indicative of an intention to hold adversely to the ven-dee or those claiming under him. (Holman v. Criswell, 15 T., 394; Early v. Sterrell, 18 T., 113.)  