67 Ky. 635 | Ky. Ct. App. | 1868
delivered the opinion op the court:
Although the sale of the land to the appellant was not by the acre, but in gross, the deficiency proved of forty-one and three fourths acres in the tract, which was sup
The correct rule for applying the statute of limitations in cases like this, which is five years, seems to be, that the statute shall run from the discovery of the mistake, or from such time as, by the exercise of ordinary diligence, it ought to have been discovered by the plaintiff. (Grundy's heirs vs. Grundy, &c., 12 B. Mon., 271.)
It sufficiently appears by the answer of the defendant, in connection with the argument of counsel, that the sale was made, and the plaintiff put in possession of the land, in 1854; and that the plaintiff, being sued for a balance of the purchase money in 1856, attempted to defend the action on the ground that the quantity of the land was deficient to some extent; and afterwards, in January, 1857, he accepted a deed from the defendant conveying the land by metes and bounds, as containing two hundred acres. He could then have discovered the mistake even by having the quantity calculated from the calls of the deed, and doubtless could have done so before from the boundary given in the bond for title, which he held. At all events, he could easily have solved any doubt as to the quantity of the tract by having it surveyed. This he failed to do, according to the statements of the petition, until the 11th of March, 1861, when, being about to sell the land to another, he caused a survey to be made, by which the tract appears to contain only one hundred and fifty-eight and one fourth acres and six poles; yet he did not bring this suit till the 3d day of November, 1862.
Wherefore, the judgment is affirmed.