Cheshire v. . Jackson ( 1933 )

This is an action to reform a deed by which the plaintiff conveyed the land described therein to the defendants. The deed was executed on 10 November, 1919.

It is alleged in the complaint that by the mutual mistake of the parties the description in the deed includes land which the plaintiff did not sell, and which the defendants did not buy, and that the mistake was not discovered by the plaintiff until some time in August, 1931. The plaintiff prays that the description in the deed be corrected, so that only the land which the plaintiff sold, and which the defendants bought, shall be included therein.

The allegations of the complaint with respect to the mutual mistake of the parties are denied in the answer. The action was begun on 10 October, 1931. The defendants in their answer plead the three-year statute of limitations in bar of plaintiff's recovery.

There was evidence at the trial sufficient to sustain the allegations of the complaint.

The issues submitted to the jury were answered in accordance with the contentions of the plaintiff.

From judgment on the verdict, the defendants appealed to the Supreme Court. The cause of action alleged in the complaint, and supported by the evidence at the trial, did not accrue until the mistake in the description of the land conveyed by the deed was discovered by the plaintiff, or at least until such mistake should have been discovered by her in the exercise of ordinary care, C. S., 441(9), Sinclair v. Teal,156 N.C. 458, 72 S.E. 487. The statute of limitations did not begin to run against the plaintiff until some time in August, 1931. The action was begun on 10 October, 1931.

There was no error in the refusal of the trial court to dismiss the action by judgment as of nonsuit. The judgment is affirmed.

No error.