after stating tbe case: On a former appeal in this cause, 139 N. 0., 196, we have held that tbe plaintiff bad a good cause of action, and this appeal presents tbe question whether tbe cause of action is barred by tbe statute of limitations. Tbe statute applicable, Revisal 1905, sec. 395, subsec. 9, bars an action of this character, actions for recovery on account of fraud or mistake in three years, and provides that tbe cause of action shall not be deemed to have accrued until tbe discovery by the aggrieved party of the facts constituting said fraud or mistake.
The defendant contends that on the facts of this case the cause of action should be deemed to have accrued on the delivery of tbe deed; and for the' reason that as the deed contained an accurate description of tbe land by metes and bounds, tbe exact quantity could have been readily ascertained by a simple calculation. But we do not think this position can be sustained. There may be facts and attending circumstances from which tbe jury might fix this as tbe date when the statute begins to run; but we do not think it follows from tbe mere fact that the deed, on its face, contains an accurate description of tbe land by metes and bounds. In
Stubbs v. Motz,
In tbis case
Ha/irison, Judge,
for tbe Court, said: “Tbe rule is well established that tbe means of knowledge is equivalent to knowledge, and that a party who has tbe opportunity of knowing tbe facts constituting tbe fraud of which be complains cannot be supine or inactive and afterwards allege a want of knowledge that arose by reason of bis own laches or negligence.” Citing
Wood v. Carpenter,
In a well-considered note to Pomeroy’s Equity Jurisprudence, 3 Ed., sec. 917, note 2, the doctrine is stated as follows : “This can only mean that tbe defrauded party’s ignorance must not be negligent; that be remains ignorant without any fault of bis own; that be has not discovered tbe fraud, and could not by any reasonable diligence discover it. If tbe statement means anything more than tbis, it is in direct conflict with tbe ablest authorities, and with tbe very principle upon which tbe rule itself is based. In Rolfe v. Gregory, 4 De Gex, J. & S., 576, Lord Westbury said: ‘As the remedy is given on tbe ground of fraud, it is governed by tbis important principle, that the right of the party defrauded is not affected by the lapse of time, or, generally speaking, by anything done or omitted to be done so long as be remains, without any fault of bis own, in ignorance of tbe fraud that has been committed.’. In Vane v. Vane, L. R., 8 Ch., 383, James, L. J., said that tbe statute will not begin to run ‘until tbe fraud is first discovered, or might with reasonable diligence bave been discovered.’ ”
It will be noted that many of these authorities concern questions of fraud, but the section of tbe statute here consid *220 ered applies equally to actions for relief on tbe ground of fraud, or mistake; and in determining tbe time when tbe statute begins to run, tbe authorities, as a rule, pertinent to tbe one class of actions will be controlling as to tbe other. In tbe case before us there may be many facts to be considered in determining tbe proper date: Tbe assurance of tbe commissioner as to tbe quantity of land, and bow far tbe same should have been accepted and relied upon, tbe personal knowledge tbe purchaser may have bad of tbe land, tbe opportunity to inform himself, tbe character of tbe boundary, tbe extent of tbe deficit, etc. And tbe cause should be submitted to tbe jury with a charge embodying tbe principle that plaintiff’s cause of action is barred in three years from tbe time tbe mistake was discovered by plaintiff, or could have been discovered by tbe exercise of ordinary diligence.
Tbe plaintiff calls our attention to the fact that tbe mortgage indebtedness, paid off by tbe proceeds of tbe land, was not barred at tbe time of tbe sale, nor at tbe institution of this action; and we are asked to bold that, as plaintiff is subrogated to tbe right of creditors, tbe claim, as a matter of law, is therefore not barred. This principle may be correct where tbe same applies, and might be efficient to enable plaintiff to enforce bis claim against tbe land relieved by bis -money, provided be has a claim. In order, however, to insist upon tbe right of subrogation, tbe plaintiff must first establish a valid claim, and if this has been lost by bis own laches since bis right arose, tbe position insisted upon will not avail him. As a matter of fact, however, this is not a case wbei’e a purchaser of land, having paid off an existing encumbrance, may, under certain circumstances, be subro-gated to the rights of tbe person whose lien or encumbrance be has discharged. Here, there was no lien, so far as this purchase-money now sued for is concerned. Plaintiff’s claim, rests on tbe proposition that there was a deficit of land, and *221 his right arises, not from the .discharge of a specific lien, but because purchase-money paid by him under a mistake has been used to satisfy the indebtedness of the testator. Lie would seem, therefore, to have a demand of indebitatus assumpsit against the estate of the testator to be enforced unless the same is barred by the statute as indicated.
Again, a number of cases have been presented for our consideration where a plaintiff has been allowed to recover after a much longer period had elapsed before suit entered. But in these cases, the additional time had passed when the purchaser was in the possession and enjoyment of the property, and no right to assert his demand arose to him until such possession was interrupted by an adverse claim.
There is error which entitles defendant to a new trial, and it is so ordered.
New Trial.