Reports of cases argued and decided in the Supreme Court of the State of Texas during a part of December term, 1849, at Austin and a part of Galveston Term, 1851. Volume 5. Page: 143
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AUSTIN, 1849. 285-286
Weaver v. Shaw.
petition in this case be considered obnoxious to the objection raised by the
counsel for the p)laintiffin error.
We will next in order consider the sufficiency of the defense of the statute of
limitations. It will be recollected that the condition of the bond sued oln was
not broken until the expiration of six months from the opening of lie general
land office. The subject of the condition shows most conclusively what was
meant by opening the land office: it was opening it for tile issue of patents or
the titles by patents issued on the headrights of persons entitled to such Government
title papers. If the suit had been brought before the time so specified
ill the bond, it could not have been sustained, because the conditions would not
have been broken. Now, although by an act of Congress a 2much earlier time
was fixed for tie "opening"ll of the land office in tile sense of that term contemplated
by the parties, yet we are authorized to know from tlme history of
our own times, constituting a part of our political history, that the lalll office
was not practically opened for such purposes until some time in 1844. That its
operation in this respect was restrained by lifflerent acts of tile Legislatulre, by
proclamation. and by the removal of the Government for a time from the city
of Austin. The obligor could have urged these facts ha1d he bften sued sooner,
and could have shown that uintil that time tlhe contingency hadd not happened
on which le was to fulfill tle conditions of his bond. Under this view of the
question it is not material to know the exact tinim when tile 1nd office s!lould
be considered "opened," as it is certain that it was not at a time early enough
to complete tle running of the statute before the commencement of the suit
in this case. And if there was any doubt upon tlhe subject, it would be entirely
dispelled by a part of the evidence furnished by tile record. On the 11th of
May, 1844, the year in which Berry died, lie writes from Gallveston to his
friend in Kentucky, expressing his wish to be in Kentucky, but is determined
 not to leave Texas until he had obtained all of his patents. He expresses
a belief that tils can be done in about six weeks, as he " has just been.
informed that the Commissioner of the General Land Office has obtained possession
of tlhe archives." This is conclusive against him of tie existence of the
impediments to procuring the patent, and he could not say that the land office
hIad been practically opened for the issue of patents prior to that time. This
view of the subject dispenses with the necessity for discussing and deciding
whether the obligation sued on is a moneyed contract coming within the
meaning of the statute of limitations. This is a question of importance,
involving a large amount of interests in this State, and it has never been discussed
in this court. We should lave felt reluctant to decide it without the
aid of a full discussion, and are happy to be relieved from that necessity in
NOTE 51.-Newson v. Chrisman, 9 T., 113; Smith v. Smith, 11 T., 102; Purvis v. Sherrod, 12 T.,
140; Crain v. Crain, 17 T., 80; Lott v. Ballard, 21 T., 167; Atchison v. Smith, 25 T., 228.
NOTE 52.-Ponton v. Bellows, 22 T., 681.
WEAVER, EX'R OF GARDINER, V. SHAW.
The plaintiff recovered judgment before a justice. The defendant appealed. The plaintiff
died. The appeal was docketed by mistake in the name of the plaintiff against the surety
in the appeal bond. An attorney professing to represent the plaintiff appeared, and without
any suggestion of the death of the plaintiff judgment was entered that the suit was
settled at the costs of the defendant. Three years afterwards the representative of the
plaintiff filed his petition: Held, Thatthe judgment was void, but by analogy to the period
allowed for a bill of review the application came too late to resuscitate the suit.
Where an error of fact is committed, as, for example, in the entry of judgment against a party
who is afterwards discovered to have been dead at the time. the proper mode or proceeding
is by petition to the court where the error occurred in the nature of a petition for a
writ'of error roram rnobis. and, by analogy to the period allowed for a bill of review, the
petition should be filed within two years. (Note 53.)
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Texas. Supreme Court. Reports of cases argued and decided in the Supreme Court of the State of Texas during a part of December term, 1849, at Austin and a part of Galveston Term, 1851. Volume 5., book, 1883; St. Louis, Mo.. (https://texashistory.unt.edu/ark:/67531/metapth28569/m1/151/: accessed December 5, 2020), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .