GAINES, Associate Justice.
This is an application to this court for a writ of mandamus to the Commissioner of the General Land Office. It is alleged in the petition, in substance, that the plaintiffs are the heirs of Leroy Wilkerson; that he died in 1836; and that on the 2d day of March, 1838, a certificate was issued, at the instance of the administrator of his estate, to his heirs, for one-third of a league of land; that on the 10th day of November, 1845, they caused it to be located upon a certain tract in the petition described, and that in pursuance of the location they caused the land to be surveyed and the field notes of the survey and the certificate to be returned to the General Land Office.
It is further alleged, that the Commissioner of the Land Office at that time ordered the patent to issue to the heirs of Leroy Wilkerson, but that no such patent ever issued; and that thereafter, on the 24th day of August, 1846, by mistake, a patent was issued to the heirs of Lucy Wilkerson.
It is further averred, that no such person ever existed as Lucy Wilkerson, and that there is no person claiming the land by virtue of that patent, but that it is in possession of one Deidricli Rode, who is in possession of the land, claiming adversely to plaintiffs.
It is further averred, that plaintiffs had demanded of defendant McGaughey, as Commissioner of the General Land Office, that he cancel the patent previously issued, and that he issue a patent to the heirs of Leroy Wilkerson, and that he had refused.
The plaintiffs pray for a writ commanding the Commissioner to cancel the old and to issue a new patent in accordance with the certificate. Rode was made a party, and though served with process, has not appeared.
The defendant McGaughey filed exceptions to the jurisdiction of the court, general and special demurrers, and an answer to the merits. The cause has been submitted upon the exceptions and demurrers.
A writ of mandamus will lie against an officer to compel the performance of a plain and imperative duty when the plaintiff has no other adequate means of redress. The act to be compelled must be one which he has no discretion to refuse to perform, and which does not call for the exercise of his judgment upon matters of fact. When there are conflicting claims to be affected by the act sought to be enforced, which may call for the determination of mixed questions of law and fact, the officer can not be drawn into the litigation and forced to act until the right has been determined and his duty made clear.
In The Commissioner v. Smith, 5 Texas, 471, Mr. Justice Wheeler says: “ It is only in those cases where the right or title is not litigated that the party may proceed by mandamus against the Commissioner at the seat of government. But where there are questions of fact to be litigated between those holding adverse claims, before the right of the party to his patent can
be determined, he may and ought to sue upon his survey and certificate in the county in which the land is situated, and then settle the question oí right.”
The principle here recognized is the rule of the common law, as is well illustrated by the case of Rex v. Banks, 3 Burr., 1452. That was a proceeding for a mandamus to compel certain officers to take action to bring about an election of a mayor, and it appeared that there was a de facto mayor who was performing the functions of office. Upon that fact being shown to the court, the acting mayor was required to be made a party. We now quote from the report of the case: “Lord Mansfield proposed, that the counsel for the defendants should file their affidavits, that the prosecutor’s counsel might be able to judge whether, upon the affidavits of both sides compared together, it was a doubtful election, and fit to be tried upon an information in the nature of a quo warranto, or whether it was a mere colorable election and clearly void. For if the former should prove to be the case, the court ought not to grant a mandamus; in the latter case they "ought.” The affidavits were filed, and the counsel for the prosecutor being satisfied that it was a doubtful question, dismissed his case.
The limitation upon the writ here enforced accords with the definition of its scope as laid down by all the authorities.
A different practice, in certain cases at least, seems to have grown up in the District Courts of this State, and seems also to have been recognized as proper by this court. When there have been conflicting claims to land filed upon by a party, he has been permitted to bring suit against the adverse claimant and the surveyor, and to pray a mandamus against the latter, to compel him to make the survey. In such a case the mandamus is incidental to the main litigation. The practice is convenient and unobjectionable upon broad principles, provided the officer is absolved from the payment of costs in cases in which the right is not clear. The practice has probably been acquiesced in by reason of the tendency of our courts to discourage a multiplicity of suits. Whether it should be upheld or not, we are not called upon to decide in this case.
But we are clearly of the opinion that it was intended neither by the recent amendments to the Constitution nor by the statutes which have been passed in pursuance thereof, to cojifer jurisdiction upon this court to try •a case on mandamus in which the act which is sought to be compelled may involve the determination of a doubtful question of fact. The machinery of the court is not adapted to the trial of such a cause. The Bill of Rights secures the right of trial by jury, and while the people doubtless could amend the Constitution so as to modify or limit the right, we do not think any modification was intended by the provision in the late amendments which authorized the Legislature to confer jurisdiction upon
this court to issue the writ of mandamus in certain specified cases. We think it was not intended that we should exercise that jurisdiction in any ease, unless the officer was under a clear legal obligation to do the act, and the right to have it performed was not dependent upon the determination of any doubtful question of fact.
The plaintiffs in this case seek to compel the Commissioner of the Gfen- . eral Land Office to cancel a patent issued nearly a half-century ago, and delivered to some person unknown, and now in the possession of an adverse claimant of the land which it purports to convey; and to issue another in its stead. The ground for the action is, that the Commissioner who issued the existing patent mistook the name in the certificate and wrote “ Lucy” instead of “ Leroy;” and that there was no such person ■as Lucy Wilkerson. The similarity of the two names when written by other than a clerical hand makes the allegation plausible. But the fact that some one took out the patent would indicate that as early as 1846 ■there was a claimant of the land under the patent as issued.
If the fact be as alleged, it is most probable that within any reasonable 'time after the patent issued it could have been clearly established. Now its proof, if proved at all, must rest upon doubtful presumptions.
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GAINES, Associate Justice.
This is an application to this court for a writ of mandamus to the Commissioner of the General Land Office. It is alleged in the petition, in substance, that the plaintiffs are the heirs of Leroy Wilkerson; that he died in 1836; and that on the 2d day of March, 1838, a certificate was issued, at the instance of the administrator of his estate, to his heirs, for one-third of a league of land; that on the 10th day of November, 1845, they caused it to be located upon a certain tract in the petition described, and that in pursuance of the location they caused the land to be surveyed and the field notes of the survey and the certificate to be returned to the General Land Office.
It is further alleged, that the Commissioner of the Land Office at that time ordered the patent to issue to the heirs of Leroy Wilkerson, but that no such patent ever issued; and that thereafter, on the 24th day of August, 1846, by mistake, a patent was issued to the heirs of Lucy Wilkerson.
It is further averred, that no such person ever existed as Lucy Wilkerson, and that there is no person claiming the land by virtue of that patent, but that it is in possession of one Deidricli Rode, who is in possession of the land, claiming adversely to plaintiffs.
It is further averred, that plaintiffs had demanded of defendant McGaughey, as Commissioner of the General Land Office, that he cancel the patent previously issued, and that he issue a patent to the heirs of Leroy Wilkerson, and that he had refused.
The plaintiffs pray for a writ commanding the Commissioner to cancel the old and to issue a new patent in accordance with the certificate. Rode was made a party, and though served with process, has not appeared.
The defendant McGaughey filed exceptions to the jurisdiction of the court, general and special demurrers, and an answer to the merits. The cause has been submitted upon the exceptions and demurrers.
A writ of mandamus will lie against an officer to compel the performance of a plain and imperative duty when the plaintiff has no other adequate means of redress. The act to be compelled must be one which he has no discretion to refuse to perform, and which does not call for the exercise of his judgment upon matters of fact. When there are conflicting claims to be affected by the act sought to be enforced, which may call for the determination of mixed questions of law and fact, the officer can not be drawn into the litigation and forced to act until the right has been determined and his duty made clear.
In The Commissioner v. Smith, 5 Texas, 471, Mr. Justice Wheeler says: “ It is only in those cases where the right or title is not litigated that the party may proceed by mandamus against the Commissioner at the seat of government. But where there are questions of fact to be litigated between those holding adverse claims, before the right of the party to his patent can
be determined, he may and ought to sue upon his survey and certificate in the county in which the land is situated, and then settle the question oí right.”
The principle here recognized is the rule of the common law, as is well illustrated by the case of Rex v. Banks, 3 Burr., 1452. That was a proceeding for a mandamus to compel certain officers to take action to bring about an election of a mayor, and it appeared that there was a de facto mayor who was performing the functions of office. Upon that fact being shown to the court, the acting mayor was required to be made a party. We now quote from the report of the case: “Lord Mansfield proposed, that the counsel for the defendants should file their affidavits, that the prosecutor’s counsel might be able to judge whether, upon the affidavits of both sides compared together, it was a doubtful election, and fit to be tried upon an information in the nature of a quo warranto, or whether it was a mere colorable election and clearly void. For if the former should prove to be the case, the court ought not to grant a mandamus; in the latter case they "ought.” The affidavits were filed, and the counsel for the prosecutor being satisfied that it was a doubtful question, dismissed his case.
The limitation upon the writ here enforced accords with the definition of its scope as laid down by all the authorities.
A different practice, in certain cases at least, seems to have grown up in the District Courts of this State, and seems also to have been recognized as proper by this court. When there have been conflicting claims to land filed upon by a party, he has been permitted to bring suit against the adverse claimant and the surveyor, and to pray a mandamus against the latter, to compel him to make the survey. In such a case the mandamus is incidental to the main litigation. The practice is convenient and unobjectionable upon broad principles, provided the officer is absolved from the payment of costs in cases in which the right is not clear. The practice has probably been acquiesced in by reason of the tendency of our courts to discourage a multiplicity of suits. Whether it should be upheld or not, we are not called upon to decide in this case.
But we are clearly of the opinion that it was intended neither by the recent amendments to the Constitution nor by the statutes which have been passed in pursuance thereof, to cojifer jurisdiction upon this court to try •a case on mandamus in which the act which is sought to be compelled may involve the determination of a doubtful question of fact. The machinery of the court is not adapted to the trial of such a cause. The Bill of Rights secures the right of trial by jury, and while the people doubtless could amend the Constitution so as to modify or limit the right, we do not think any modification was intended by the provision in the late amendments which authorized the Legislature to confer jurisdiction upon
this court to issue the writ of mandamus in certain specified cases. We think it was not intended that we should exercise that jurisdiction in any ease, unless the officer was under a clear legal obligation to do the act, and the right to have it performed was not dependent upon the determination of any doubtful question of fact.
The plaintiffs in this case seek to compel the Commissioner of the Gfen- . eral Land Office to cancel a patent issued nearly a half-century ago, and delivered to some person unknown, and now in the possession of an adverse claimant of the land which it purports to convey; and to issue another in its stead. The ground for the action is, that the Commissioner who issued the existing patent mistook the name in the certificate and wrote “ Lucy” instead of “ Leroy;” and that there was no such person ■as Lucy Wilkerson. The similarity of the two names when written by other than a clerical hand makes the allegation plausible. But the fact that some one took out the patent would indicate that as early as 1846 ■there was a claimant of the land under the patent as issued.
If the fact be as alleged, it is most probable that within any reasonable 'time after the patent issued it could have been clearly established. Now its proof, if proved at all, must rest upon doubtful presumptions. If a feet, the Commissioner who committed the error would probably have •corrected it upon having his attention called to it; or if he had refused, it may be that he could then have been compelled to issue another patent. But the present officer, who stands removed nearly fifty years from the transaction, and knows nothing of the facts except as disclosed by "the records of his office, occupies very different ground.
Laches may be a bar to a writ of mandamus. The State v. Kirby, 17 S. C., 563; Chum v. Trustees, 32 Ohio St., 236; The People v. Common Council, 78 N. Y., 56; The People v. Seneca Common Pleas, 2 Wend., 264; The People v. Delaware Common Pleas, 2 Wend., 256. And we have no doubt that this presents a clear case for the application of the •doctrine. It is a sufficient reason for refusing the writ here applied for, that the plaintiffs have slept so long upon their rights that the facts have become obscured, and that so far as this court can see, the determination ■of the litigation would most probably require the decision of doubtful questions of fact. Upon this ground alone we deem it proper to dismiss the case without passing upon any other question presented by the exceptions and demurrers.
There may be a serious question whether in attempting to define our Jurisdiction in mandamus suits the Legislature has sufficiently “ specified the cases” in which we may grant the writ, as required by the amendment. While it would have been regular and more logical to determine 'that question in the first place, the result to the plaintiffs is the same, -whether we should entertain the jurisdiction or not. We prefer to leave
the question open and say this much, so that our action may not be construed as a decision upon it.
The petition is dismissed.
Dismissed.
Delivered May 4, 1893.