Hanlenbeck v. Riley ( 1872 )

Cole, J.

We have read with care all the testimony in the ease, and we could, without much trouble, concur witfi. the district court in the finding of facts, that the plaintiff purchased the tract he claims, that the other tract was included in the deed by mistake, and that the defendant, Solomon Riley, purchased with knowledge of such facts. But, in our' view, the plaintiff’s cause of action is barred by our statute of limitations.

The deed was made June 8, 1857. The plaintiff himself testifies, that he first learned that the deed was incorrect in its description of the timber he bought of defendant, about six years after the deed was given. This would make it about June, 1868. And this action was not brought till March, 1869, more than' ten years after the deed was made, and more than five years after the plaintiff discovered the fraud or mistake. So that, if it is an action for the recovery of real property, it is barred by Revision, section 2740, subdivision 4, which enacts, that such actions must be brought within ten years; and if it is brought for relief on the ground of fraud (instead of a mistake) in thus making the deed, it is barred- in five years after the discovery of the fraud by the party aggrieved, by Revision, section 2741.

Rut, it is insisted in argument, that the testimony shows that the plaintiff took possession of the tract of timber he now claims to have purchased, and used the same as his own, by cutting timber and wood thereon, and exercising acts of ownership over it, until about 1865, when the defendant Solomon Riley took and still holds possession of it; and that this possession inures to his benefit. The difficulty with plaintiff here is, that he now has neither title or possession. His deed does not show any title, for the land in controversy is not conveyed by it. His possession, which did not exceed eight, years, does not show any title, for it was not continued long enough. If the plaintiff was still in possession of the land and was resisting an action by the holder of the legal title, with notice, he would, doubtless, be invulnerable. His equitable title and possession would constitute a complete shield, while, without possession, it has no power as'a weapon of attack.

Reversed.