
    Skinner, vs. Judy.
    June 27.
    Error to the Clarke Circuit; Rich. French Judge.
    
      Limitation of actions.
    
    Chancery.
    Case 79.
    Claim of vendor to compensation for surplus land conveyed by mistake, is barred by lapse of five years afterthe discovery of the mitake.
    Simpson, for plaintiff; Hanson, and Hockady, for defendant.
   Chief Justice Robertson,

delivered the opinion of the court.

In 1814, Skinner conveyed tó Judy 47 acres of land, and in 1828, he brought this suit in chancery for compensaiion for an alleged surplus of ten acres, which he avers that he discovered in 1818. Judy, among other grounds of defence, relied on the statute of limitations, and the Circuit court on that plea, dismissed the bill.

The lapse of time was an insuperable bar to the reliefsought. The plainfiffin error could not be entitled to a restitution or re-conveyance of any part of the land, because he conveyed all the land within the designated boundary; and there was no mistake in the boundary: and therefore, the plaintiff could be entitled only to compensation for the surplus land. His right of action for such compensation could not, (at least in equity) be barred, unless five years or more had elapsed from the discovery of the mistake to the institution of the suit. But the bill alleges that the plaintiff discovered the mistake in 1818. It is true, that the defendant insists that there is no surplus, and therefore, virtually admits that, if there be any, he has never paid for it. But the statute of limitations in such cases, is not based on a presumption of payment so much as on the policy of assuring peace, and preventing litigation after the lapse of five years from the origin of the cause of action.

Decree affirmed.  