108 Ky. 105 | Ky. Ct. App. | 1900
Opinion of the cotjkt by
Affirming.
In 1880 the appellee conveyed to the appellant a tract of land by a deed of general warranty. For the purchase money the appellant executed to the appellee his note. The last payment for the purchase price was made September 10, 1887, and in 1896 the appellant discovered there was a deficiency of nearly thirty -one acres in the boundary conveyed. The amount overpaid, as alleged, is something over $1,100. On April 17, 1897, the appellant instituted this action to recover the sum overpaid and interest. The question involved in this case is aS' to the application of the statute of limitation. It is insisted by counsel for appellant that limitation, under out statute, should be computed from September 10, 1887, the date upon which the last payment of the purchase money was made. For the appellee it is claimed the statute of limitation began
Counsel for appellee cites some cases of this court in which it states that the time of the making of a contract or the perpetration of the fraud is the date from which the statute begins to run. The case cited and the language the court employs are as follows: It was said in Dorsey v. Phillips, 84 Ky. 426, 1 S. W. 669: “This statute of ten years’ limitation runs, not from the time of the discovery of the fraud nor from the time the right of action first accrued, but from the time of making the contract or the perpetration of the fraud.” It was said in Brown v. Brown, 91 Ky. 641, (11 S. W. 4): “If the party who is injured by the fraud or mistake is apprised of it at the time it is perpetrated, he must bring his action within five years thereafter; but, if ha is- not apprised of it at the time it is perpetrated, he must bring his action, within five years after the discovery; but in no case can he 'bring his action after the lapse of ten years from the making of the contract or the perpetra
Petition for rehearing filed by appellant and overruled.