Nave v. Price. 66 to run the day the deed was made, which was in 1880. Section 2515, Kentucky Statutes, read as follows: An action for relief on the ground of fraud or mistake shall be commenced within five years next after the cause of action accrued." Section 2519, Kentucky Statutes, reads as follows: "In actions for relief for fraud or mistake, or damages for either, the cause of action shall not be deemed to have accrued until the discovery of the fraud or mistake; but no such action shall be brought ten years after the time of making the contract or the perpetration of the fraud." The General Assembly had in mind that mistakes would occur, and that frauds would be perpetrated in the making of contracts; but, knowing that frauds might be perpetrated in a transaction not, properly speaking, a contract, it was said that the action should not be brought 10 years after the time of making the contract or the perpetration of the fraud. In fixing such date for the computation of the period of limitation, the word "contract" and the phrase "the perpetration of the fraud" were used in the statute as meaning the same thing; the evident intention being to make the date on which the contract was made or the fraudulent act done the date from which to compute the period of limitation. Of course, a contract was made between the parties on the day the deed was executed. The deed recited that the boundary of land contained a number of acres, and then erroneously recited that it contained thirty-one acres more than it actually contained, but the deed, however, did not warrant that the boundary contained the quantity stated in the deed. When the vendee paid the purchase money for thirty-one acres more than the boundary contained, the law implied a contract upon the part of the vendor to refund to the vendee the excessive amount thus Nave v. Price. paid, which resulted from the mutual mistake of both parties. This court in several cases has ruled that the right to relief for a deficit is based on an implied assumpsit to refund the money paid by mistake. Crane v. Prather, 4 J. J. Marsh. 75; Dye v. Holland, 4 Bush, 635; Young v. Craig, 2 Bibb, 270; Harrison v. Talbot, 2 Dana, 258. This being the principle announced by this court, the cause of action is not based upon a deed or contract of sale of the land, nor for fraudulent representations made. in the deed nor to reform it, nor is the action for a rescission of the contract of sale, but it is based upon the implied contract to refund the money which was paid as a result of the mutual mistake. As the deed is not the foundation of the action, it will not do to say that the statute of limitation began to run from its date. On the contrary, it began to run from the date the law implied a contract, which was the moment the payment was made, as the cause of action then accrued. In the case of Biggs v. Railroad Co., 79 Ky. 475, the court said: "This right of action is based upon the contract which the law implies as the result of justice and reason growing out of the mutual mistake of innocent parties, and is barred by the lapse of five years from the discovery of the mistake, if payment be made before that event. Payment and the discovery of the mistake must concur before a recovery can be had. Under the rule that at the instant the cause of action accrues limitation begins to run, it starts on its course from the moment of payment, as the cause of action then accrues; but our statute and adjudications restrain its operation upon the cause until the mistake shall be discovered, if that occurs within ten years after the contract." If the foundation of plaintiff's right is to be reimbursed the excessive amount paid, Nave v. Price. it logically follows that the transaction of the payment of that amount is the one from which the period of limitation must be computed, not from one which antedated that. If the statute began to run when the deed was executed, then, if the vendee had failed to pay the purchase money until the expiration of ten years, no relief could be had for the mistake in paying more than was actually due. There would absolutely be no relief if the period of the statute of limitation is to be thus computed. Of course, no cause of action can arise for relief against a mistake in making an overpayment until such payment was made. It certainly would be illogical to hold that the statute of limitation would begin to run before the payment of the purchase money, as the relief is not granted upon a covenant in the deed, but upon a contract which the law implies. 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 he 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 Nave v. Price. tion of the fraud." It was said in Phillips v. Shipp, 81 Ky. 438: "The Legislature, knowing that great contentions would arise as to the time of discovery, when limitation should be pleaded, and that old and stale transactions, deemed fraudulent or the result of mistake, might, therefore, vex the courts long after the facts are presumed to have passed out of memory, or beyond the ability of the parties to establish or explain them, prescribed a period within which discovery and the institution of the action should both occur. The language used for this purpose is plain, direct, and forcible. It is this: 'But no such action shall be brought ten years after the time of making the contract or the perpetration of the fraud." There was no question before the court in any of these cases as to when the statute of limitation would begin to run in a case like the one under consideration. When we determine the action is based on the contract which the law raises, it necessarily follows that the period of limitation is computed from the date of that contract, and the principle announced in those cases supports the application we make of the statute of limitation in this case. In construing the statute of limitation here involved, this court has held that the action shall not be deemed to have accrued until the discovery of the mistake, or until, by the exercise of due diligence, it should have been discovered; and that the action for relief must be brought within five years from that time, and in no case after the lapse of ten years from the making of the contract. So the action should have been instituted within five years next after the vendee, by the exercise of due diligence, could have discovered the mistake. We concede the general rule to be that the defense of limitation can not be raised by demurrer to the petition, but must be specially pleaded, the Nave v. Price. only exception being when the petition shows a sufficient lapse of time and the nonexistence of any ground of avoidance of the bar. In this case the plaintiff, in his petition, seemed to have assumed that it was necessary to negative the possible plea of limitation by showing the exercise of proper diligence; therefore, as an excuse for not sooner making the discovery of the mistake, it is averred in the petition that "the land included in said boundary was all of one inclosure, and of an irregular shape, so that it was impossible to estimate the amount therein contained without actual survey and calculation; and that before and at the time of the making of said deed and of the acceptance thereof by the plaintiff and at the time of the last payment made upon the purchase money therefor, as aforesaid, and up to the day of December, 1896, both the plaintiff and the defendant in good faith believed that the said boundary did contain the amount of land stated in said deed, to wit, one hundred and forty-nine acres, three roods, and twenty poles. Plaintiff says, however, that on or about the day of December, 1896, he ascertained by an accurate survey and calculation, and now alleges, that said boundary, instead of containing the said amount of land, contained only one hundred and eighteen acres, one rood, and twenty-eight square poles; making a deficit of thirty-one acres, one rood, and thirty-two square poles." Plaintiff averred that he had not made the discovery until a certain time, and gives the reason for not having made it. The very reason which he gives shows that he did not use due diligence to ascertain the quantity of land the boundary contained. If it was in an irregular shape, then it was that much more difficult to tell the quantity it contained; therefore the greater was the reason that he should have had a survey made of it at an earlier date, |