
    Oliver Ormsby, Jr., et al. v. Nicholas Longworth and Susan, his wife.
    1. Davenport». Sovil, 6 Ohio St. Rep. 459, and Clayton ». Freet, 10 Ohio St Rep. 554, followed and approved.
    2. In a ease purely equitable, and not cognizable in a court of law, where, in an . otherwise proper case, it is sought, on the ground of mistake, to reform and' enforce an agreement for the conveyance of real estate, and the correcting of the mistake involves no change of possession, no disturbance of investments made by the party against whom the correction is sought, and leaves *he enjoyment of the property to go on in harmony with the prior acts of the parties in interest, the lapse of time applied by courts of equity, in analogy to the • statute of limitations, will be reckoned only from the time of the discovery of the mistake.
    Error to the district court of Hamilton county.
    On the 30th day of January, 1854, the defendants in error, - Nicholas Longworth and Susan, his wife, filed their petition ■ ■in the court of common pleas of Hamilton county, against the plaintiffs in error, Oliver Ormsby, Jr., and others, heirs of ‘Oliver Ormsby, deceased, the object and prayer of which petition was to correct an alleged mistake in, and reform, a certain deed, made by the said Oliver Ormsby in his lifetime, to .Longworth and wife, which was intended to be a deed of conveyance of real estate; but which, by reason of a defect in the mode of its execution, amounted only to a contract to convey; and to compel a specific performance of the contract •so reformed.
    The case having been heard and determined in the court of common pleas, it was taken thence, by appeal, to the district court of Hamilton county; where, at the October term, 1858, that court, upon a special finding of facts, embodied in -.the record, gave judgment in favor of Longworth. and wife, plaintiffs below, as prayed for in their petition. And to reverse that judgment, this petition in error is filed and prose.cuted.
    The evidence in the case is not set out in the record; and the case, therefore, as presented here for decision, is found in the original petition, the answer, and the special findings of fact made by the district court.
    The petition below alleges, in substance, that, about the year 1805, Daniel Conner died seized of certain lands named, leaving Mrs. Longworth his widow, but no heirs, lineal or ■ collateral. By an act of the general assembly of the State of Ohio, passed February 18,1808 (1 Chase’s Stat. 571), regulating wills, etc., Mrs. Longworth became invested with all the estate, real and personal, of which her husband died possessed, subject to the rights of creditors. Mr. and Mrs. Long-worth were married about the first of January, 1808. Daniel Conner and Oliver Ormsby had been mercantile partners, at Cincinnati, under the firm name of Daniel Conner & Co.
    At April term, 1805, of Hamilton common pleas, Ormsby obtained letters of administration upon Conner’s estate, and, under such, acted.
    At the December term, 1809, of said court, he represented ,.the estate of Conner to be insolvent, and obtained from the ■clerk an order of sale, without an order of the court, so far as ■appears from the j ournal of the court’s acts, dated April 27,1810, for the sale of the lands named in the petition, except inlot No. 77, in Cincinnati; and, on 11th August, 1810, sold the same, at public auction, to himself, through the agency of George P. Torrence, to whom he made a deed, dated 2-lst September, 1810, and from whom he received a deed of the same date. These deeds were without consideration, and were intended simply to put the legal title into Ormsby.
    Prior to the sale, and after it, Ormsby claimed an equitable interest to an undivided half of said real estate, because Conner had used the partnership funds in its purchase, as he had .nothing when said partnership was formed. He also claimed said inlot No. .77, while Mrs. Longworth, as the widow of ■Conner, claimed an equal interest.
    The plaintiffs supposing the estate of Conner to be insolvent, and the sale of his real estate regular, opened a negotiation with Ormsby for a settlement, and, from examinations made, became satisfied said estate was not insolvent, and said sale was not regular, and no title had passed under it. The ■negotiations thus began, terminated in the settlement of January, 1819, whereby it was agreed that Ormsby should give ■up all claim of title under his deeds of 21st September, 1810, to and from Torrence, or as partner in said firm, or otherwise, and plaintiffs, in satisfaction of his claims against Conner’s estate, and for advances to Mrs. Longworth, should pay him $1,000 in one year, and release to him all their interest in inlot No. 77, and a tract of 227-J acres sold to Eithian & Mills; and the remainder of said real estate should be held by them as tenants in common, in fee, and they should execute, each to the other, releases in fee, for the undivided moieties thereof, and Ormsby should also release to plaintiffs a moiety of a strip of land on the Ohio river, purchased from Joel Williams.
    Under this settlement, instructions were given .to have the •deeds prepared. They were prepared, dated 27th January, •1819; and that by plaintiffs was in due form, and duly acknowledged and executed 3d February, 1819 ; but that by Ormsby was not in due form (the words of limitation, “ their heirs” or.“ their heirs and assigns” being omitted), though-signed and sealed by him, attested by two' witnesses, and its-execution proven by them 27th February, 1819. These deeds-were recorded 5th May, 1819. The said words of limitation were omitted by accident, or mistake, or through inadvertence, and it was unknown to the plaintiffs until after the death of Ormsby, who, as far as is known, was unaware of said omission. It was also unknown to them that said deed was-defective for want of a certificate of acknowledgment, as-required by the deed act of 1818, taking effect 1st May, 1818, and repealing the deed act of 1805, under which it had been executed: whereby said deed was but the written contract,, on the part of said Ormsby, for a deed.
    Under these deeds the parties took possession and control of said premises, according to their settlement and agreement, and from that time to the death of Ormsby, the parties so-held, and so acted, and so recognized the respective rights of each other.
    In pursuance of said settlement, Ormsby, on 17th February, 1820, filed in Hamilton common pleas, his account as-administrator, in which, under date of —- April, 1810, he charged himself with proceeds of said sale, as bought in on his account, and under date of — January, 1819, credits himself with said proceeds, except the 227J acre tract, and says-that said real estate “was sold, under an order of court, in April, 1810, and bought in for the use of Ormsby, now, upon-certain conditions, made again the joint property of the-concern.
    After the execution of said deeds, Ormsby, in conversations, by letter, by deeds, and by dealings with the plaintiffs and others, admitted their title to be in fee, and' they so considered it, and took possession and control as the owners in fee; which was known to Ormsby. They made deeds in fee, for portions sold during his life, and within his knowledge, without objection, or any assertion of title on his part. A»; early as 1st January, 1820, a lease was made to John Sherlock, for a part of said premises, for one hundred years,. reserving rent for the time to plaintiffs and Ormsby, with liberty to purchase at a fixed price, and, in case of purchase,, the parties were to convey in fe.e by deed of general warranty, but reserving a ferry right forever across the Ohio river, opposite said premises. On 14th February, 1820, by a paper writing, they divided the Green county land (part of said-lands), reciting that they owned it jointly. On 20th July, 1821, by deeds of that date, the parties conveyed to each-other, in severalty, certain portions of the joint lands. These conveyances are in fee. By deed of 6th April, 1827, Mr;. Ormsby conveyed to Mr. Longworth in fee, a portion of said premises, reciting that the other half of said premises was the property of Mr. Longworth and wife; and by another deed of same date, they divided in fee, inlot No. 424, in Cincinnati, and described it as held in common. On the 14th August, 1827, Ormsby conveyed to Lawler, Foote & Greene, his remaining interest in said land. On 24th June, 1828, the plaintiffs, and Lawler, Foote & Greene, made partition, and' in the deed recited that they held said premises as tenants in common, each seized of one undivided half part. By these- and various other acts, Mr. Ormsby, and those under him, recognized and admitted Mr. and Mrs. Longworth’s title in-fee, to said lands.
    About the year 1823, Mr. Longworth proposed to sell to-the Bank of the United States, this land, in payment of a-debt. The bank objected to the title, because Mrs. Ormsby’sdower had not been released. To obviate this, a deed with a release of her dower, was procured. The bank, for other reasons, declined to take the property. The deed was held of no value, and the plaintiffs, not being aware of the defects in the deed of 27th January, 1819, did not put it upon record, took no care of it, and it has since been lost or mislaid. The letter of 27th November, 1823, from Mr. Ormsby to Mr. Longworth, accompanied, and refers to this deed.
    Mr. Ormsby, though a .resident of Pittsburgh, was often at Cincinnati after the settlement of January, 1819, until a short time before his death, about the year 1832; was well advised of plaintiffs’ claim under the settlement, and never ■disputed it.
    The petition makes the heirs of Mr. Ormsby, defendants, jtnd prays relief as above stated.
    The answer of the defendants below, heirs of Ormsby, demies all the material allegations of the petition, not expressly admitted to be true. It alleges that the relations between their ancestor and Conner, were as follows:
    Their ancestor, prior to 1805, owned a mercantile establishment at Cincinnati, and took into it, as clerk, the said Conner. Finding him attentive and industrious, he took him into partnership under the name of Daniel Conner & Co. He advanced the capital, and Conner attended to the business. During the partnership, Conner purchased real estate for the partnership, paying for it with the partnership funds, but "taking the title in his own name to facilitate his making sales. Among others, he purchased that named in the petition. He died suddenly, without conveying to their ancestor the undivided half that justly belonged to him. Under the circumstances, their ancestor administered upon his estate, and proceeded to wind up the partnership. In doing so, he discovered that Conner, having had no capital, and having managed the partnership business injudiciously, died insolvent, and largely in arrears to the firm upon settlement of the partnership accounts, and left nothing to liquidate the same but the said real estate. As administrator, therefore, he represented the estate insolvent to Hamilton common pleas, at April term, 1810, and obtained an order for the appraisement and sale of said real estate. It was appraised by sworn appraisers, and that part involved in this suit was appraised at about $3,230. Upon the return of the appraisement, there was an order of court for the sale, whereupon the part above referred to was sold to George P. Torrence, as the highest bidder, for about $4,230. A deed was made to Torrence, who reconveyed to their ancestor in his own right. Whether, now, it can be inferred from the imperfect records of that date, that some of the formal steps in making said sale were omitted, and the administrator’s authority defective in some respects, they are unaware, but protest against such inference, and insist, in fact, that said administrator had authority to make the sale. Whether the sale to Torrence, and resale to their ancestor, amounted to a direct purchase by him, they ■are unaware; but they aver their ancestor acted honestly and in good faith,, with an anxious desire to promote the interests ■of Conner’s widow and legal representative, Mrs. Longworth, who, being left in straitened circumstances, was, in a great ■measure, supported by his generosity. They allege, on settlement of Conner’s estate, that he was still in arrear to his -surviving partner, or any trifling balance over was more than repaid by the advances made to his widow, as above stated.
    Such being the equities between their ancestor and Mrs. -Conner, the former being in possession of said real estate, and believing himself the legal and just owner, with a balance in his favor against the latter, one Nicholas Longworth, a practicing lawyer of Cincinnati, intermarried with Mrs. Conner ; and some time thereafter, when the value of said lands had vastly improved, owing to the rapid growth of the city, -they, thinking they had discovered a flaw in their ancestor’s title, laid claim to the whole of the property, alleging that their ancestor had bought it on his own account at the administrator’s sale, and that the law would not permit him to hold it against Mrs. Longworth, but without any pretense that their ancestor had acted in any other than good faith.
    Though believing his title just and legal,- and protesting against the oppressive and unconscionable attempt of Mr. and Mrs. Longworth, to defeat his title, obtained in good faith and for full value, by a mere technical objection, yet their ancestor being a resident of another State, unfamiliar with the laws of Ohio, and averse to a protracted litigation at a -distance, the expense of which, perhaps, he was unable to incur, and probably in the lapse of time having lost his testimony, agreed to a settlement, and thereon deeds were mutually executed between them on 29th January, 1819; one to their ancestor, releasing to him the fee simple in an undivided moiety of said property, and the other from him, releasing to Mr. and Mrs. Longworth a life estate in an undivided moiety of the same; and they deny that by accident, through-mistake and inadvertence on the part of the draftsman who. drew the last mentioned deed, the words “ and their heir» and assigns forever,” were omitted, contrary to the understanding and intention of their ancestor when he executed-said deed.
    They deny that their ancestor took possession under the deed of January, 1819, but insist that he was in possession-under his deed from Torrence. They deny that he executed-the deed referred to in the letter of 27th November, 1823. As to the other deeds executed after January, 1819, if executed, they deny that they were competent to prove that the words of inheritance were accidentally.omitted in the deed, from their ancestor, of January, 1819. And, finally, they deny that Mr. and Mrs. Longworth are entitled to any relief,, because, they say: 1. No such mistake or accidental omission was made in the deed sought to be reformed by said petitioner. 2. If there be such mistake or omission, yet Mr. and Mrs. Longworth extorted that deed from their ancestor-by such unfair and unconscionable conduct, and under such-oppressive circumstances, as not to be entitled to the aid of the court to rectify such mistake and reform such deed. 3. Admitting their ancestor’s deed amounts, in law, to a mere-contract to convey, yet it is not such a contract as the court should now insert therein, on parol proof, a new and important clause, and enforce the same against the defendants. It is contrary to the statute of frauds, and the policy of the-law, that Mr. and Mrs. Longworth should enlarge a life estate into an inheritance by parol proof; and, 4. Whatever rights they may once have had, are now lost by lapse of time.
    According to the provisions of the code at the time this answer was filed, the allegations of the answer were deemed, to be controverted without a reply.
    On hearing and consideration of the evidence, the district, court find the following to be the facts of the case:
    
      Mrst.. The plaintiffs and the ancestor of the defendants,, prior to 27th January, 1819, preferred mutual but adverse claims to the said real estate, of which Daniel Conner h-d died seized, possessed, or laid claim to. The title to said real estate, except said inlot No. 77, was derived as follows, to-wit: The said Ormsby and Conner were partners in trade ■at Cincinnati, the former residing in Pittsburgh, or its vicinity, ■and the latter in Cincinnati. The real estate was purchased by Conner, and the title taken in his name, though paid for with the partnership funds. Conner died in 1805, intestate, without heirs of his blood, and leaving Mrs. Longworth his widow, and indebted to the firm $421.22; and the firm was indebted to Ormsby in the sum of $5,820.66. Mr. Ormsby took out letters of administration on Conner’s estate, from Hamilton common pleas, in the year 1805, and treated said ■real estate in manner hereinafter stated, as the property of Conner. In the year 1810, he, as administrator, reported to said court that Conner’s estate was insolvent, and petitioned for the sale of the said real estate as the property of Conner, and under an order for that purpose, caused the same to be ■appraised as the property of Conner, and sold the same at -public auction; and at such sale had a portion thereof bid •off by George P. Torrence for himself, conveyed the same to said Torrence, and at the same time took back from Torrence a deed to himself, and assumed the payment of the money for which the land sold. Immediately after the sale, he took possession of said lands, and treated the proceeds of sale as partnership property, charging himself, in account with the firm, therewith; and afterward, in the same account, crediting himself with the amounts so assumed, and stating that said lands were bought in for himself, and then, upon certain conditions, made the joint property of the concern. At the April term, 1810, of Hamilton common pleas, to-wit, on 14th April, the following order was made upon the journals of said ■court:
    “ Proceedings on the estate of Daniel Conner, dedd. It being represented that the estate of Daniel Conner, dec’d, is .insolvent, mo. for the sale of the real estate of Daniel Conner,- dec’d, granted as the parties concerned agreed, and the .court appoint James Findlay, Jesse Hunt and Jolm James, appraisers — make return of their appraisement, and sale ordered, agreeable to law.”
    Afterward, on 27th April, 1810, the clerk issued an order to the said administrator, reciting therein that on his application, the above named appraisers had been appointed to view the estate of said Conner, and make return thereof; and that' they had, under oath, on 24th April, 1810, made said return,, as set forth in said order, and thereon ordered him to sell said lands agreeably to law, otherwise there was no order of appraisement, nor appraisement, nor order of sale, nor was said sale ever confirmed by said court. During the widowhood of Mrs. Conner, who married Mr. Longworth, as in their petition stated, Mr. Ormsby advanced to her, for her support,. $1,498.68. The court also finds that the assertion by the plaintiffs to an estate or interest in the lands, was not unconscionable, and was sufficient to become a proper subject of' compromise between the parties.
    
      Second. For the settlement of the said controversy, it was agreed by the parties as follows, to-wit: That Mr. Ormsby should give up all claim of title by virtue of his sale and purchase as aforesaid, or otherwise; and Mr. and Mrs. Long-worth, in full satisfaction of his claim upon Conner’s estate- and against them, should pay him $1,000, and release their interest in said inlot No. 77, and the tract of land sold toFithian & Mills, as in the petition stated, and the residue- of said lands Mr. and Mrs. Longworth should hold with Mr. Ormsby in fee as tenants in common; and in consideration of the premises, Mr. and Mrs. Longworth should release to Mr. Ormsby, his heirs and assigns forever, all their interest and claim to an undivided half of said lands; and that he, in consideration of the premises, should release and convey to them, their heirs and assigns forever, all his interest in and claim to the other undivided half part of said lands; and that he should also release and convey to them, their heirs and assigns forever, the undivided half of a strip of land bought of Joel Williams, on the river bank, as in petition stated.
    
      Third. In pursuance of said agreement, which was verbal, the parties proceeded immediately to execute the same; Mr. and Mrs. Longworth, by deed dated 27th January, 1819, duly executed and delivered (and of which exhibit No. 1 to their potion is a true copy), conveyed to Mr. Ormsby, his heirs and assigns forever, the undivided half of said lands; and Mr. Longworth also gave him his note for $1,000, and afterward paid the same.
    
      Fourth. Mr. Ormsby, intending to fulfill said agreement, executed and delivered to Mr. and Mrs. Longworth a paper writing of the same date (of which exhibit No. 2 to petition is a copy), both parties supposing and believing the same was a good and sufficient deed in fee simple, conveying to Mr. and Mrs Longworth, their heirs and assigns forever, the premises therein described, and thereby intended to be so conveyed.
    
      Fifth. That the draftsman of said paper writing last referred to, by an accidental mistake, omitted therefrom, in the granting clauses thereof, after the names of the grantees, the usual words of inheritance, viz : “ and their heirs and assigns forever.”
    
      Sixth. That said mistake was not discovered by, or known to, the said parties, or either of them, until after the death of Mr. Ormsby.
    
      Seventh. That in ignorance and mistake of the law then in force, the said Ormsby neglected to acknowledge the execution of said paper writing before a proper officer, but its execution was proven by the subscribing witnesses.
    
      FightJi. That Mr. and Mrs. Longworth have been in possession of said lands since 27th January, 1819, without interruption, by themselves or those claiming under them, claiming and asserting title to the said lands in fee simple under said paper writing, referred to as exhibit No. 2 to said petition; and their said claim of title was recognized and acquiesced in by Mr. Ormsby, in his lifetime, by the dealings of the parties, as stated in the petition.
    
      Ninth. That Mr. Ormsby died in the year 1838, intestate, leaving the defendants his heirs at law.
    To prove which facts in addition to the original deeds, of which exhibits No. 1 and No. 2 to the petition are copies, and the original account in the handwriting of Mr. Ormsby, of which exhibit No. 8 to the petition is a copy, the plaintiffs offered parol testimony, which was admitted by the court, but to the admission of which, as incompetent, the defendants objected.
    Upon these facts, as found, the court was of opinion that the paper writing of 27th January, 1819, executed by Mr. Ormsby to Mr. and Mrs. Longworth, and of which exhibit No. 2 to the petition is a copy, though insufficient at law to convey the legal title in fee simple, was valid and binding in equity as a contract to convey; that Mr. and Mrs. Longworth were entitled to have the mistake in the words thereof corrected, so as to conform to the intentions of the parties thereto, by the insertion, in the granting clause, after the names of the grantees, of the usual words of inheritance, to-wit: “ and their heirs and assigns forever,” so that the same shall describe an estate in fee simple, to have the said contract so reformed, specifically executed and enforced by the execution and delivery to Mr. and Mrs. Longworth, by the defendants, of good and sufficient deeds of conveyance, releasing to them in fee simple all the interest of said defendants in the said lands, and to have the title and possession of the said premises, as so declared, in them forever established and quieted against the defendants.
    And, therefore, it was ordered and adjudged by the court, that the defendants, in thirty days, execute and deliver to Mr. and Mrs. Longworth good and sufficient deeds, conveying and releasing to them, their heirs and assigns forever, all the said real estate, described in said paper writing, a copy of which is attached to said petition, marked exhibit No. 2; or, in default, that the said order stand and operate as such deeds would stand and operate at law, and that their title at law and possession to said real estate, be forever established and quieted against the defendants, and they be perpetually enjoined and forever barred from interfering with or disturbing the same, or setting up any claim thereto adverse to Mr. and Mrs. Longworth, their heirs and assigns.
    
      It is assigned for error—
    1. That the petition of the said Nicholas Longworth and '.Susan, his wife, in said action, does not contain facts sufficient to constitute a cause of action.
    2. The said district court erred in admitting parol testimony to show the alleged error in the deed sought to be reformed in said action.
    3. The said district court erred in not holding that the statute •of frauds was a bar to the relief sought by said action.
    4. That the judgment of the court was given, in said cause, •for the said Nicholas Longworth and Susan, his wife, when, according to the law of the land, it ought to have been given :for the plaintiffs in error.
    
      T. Ewing, for plaintiffs in error.
    
      Worthington ‡ Matthews, for defendants in error.
   Brinkerhoff, J.

What would have been the rights, respectively, of Oliver Ormsby and Mrs. Longworth, in respect •to the lands of which Daniel Conner died ostensibly seized, had no agreement of compromise ever been made between them, is a question not necessary to determine in the present case; and we have looked into that question only so far as to enable us to see — what seems to us very apparent — that there was a serious and substantial question between them, in regard to which, parties fully informed as to the material facts — as to which, it does not appear that either party was ignorant — might honestly differ, and which constituted a proper subject matter of compromise. And such compromise having been made of mutual claims mutually doubtful, was a ■good consideration for the agreement here sought to be re•formed and enforced.

The allegations of the petition, and the facts as found by the district court, are substantially the same. The first and fourth assignments of error, therefore, make substantially the •same questions, and both of them go to the merits of the >whole case, as it appears of record.

During the pendency of this case,, some of the principal! questions which it presents have been decided; and, so far as-we are concerned, settled by this court. In Davenport v. Sovil, 6 Ohio St. Rep. 459, it was held, that contracts concerning lands may be reformed, on the ground of mutual mistake of parties to them; and when thus reformed, may, in the same-proceeding, be enforced; and such mistake may be proved by parol. And in Clayton v. Freet, decided at this term (10 Ohio St. Rep. 544), the above mentioned doctrine of Davenport v. Sovil, was not only approved and followed, but was applied, as-is sought to be done in the case now before us, to a mistake-of parties as to the legal effect of words in a deed, descriptive of the limitations and extent of the legal estate intended to be conveyed, as distinguished from a description of the land itself.

These cases, it seems to us, are really conclusive against' the second and third assignments of error. It is urged in-argument, however, in behalf of plaintiffs in error, that even if it be granted that a court of equity will, on the ground of mistake, shown by parol evidence, reform an instrument so-as to restrict the estate conveyed, or agreed to be conveyed, still it will not reform the instrument, on the ground of mistake so shown, where the correction made has the effect to-enlarge the estate conveyed or agreed to be conveyed. And, this, because — it is said — in the latter ease the estate is, in effect, created and granted by parol, while in the former it is not. No authority is cited in support of this distinction, and. it seems to me to be more fanciful than real. Eor, if by our decree we restrict the operation of a deed which, by its terms, conveys an estate in fee simple, so as to make it operate only as a conveyance of a life estate, we as effectually reconvey the remainder after the termination of the life estate, to the-grantor, as we would convey such remainder to the grantee, if we enlarged the life estate to an estate in fee. Eor myself I do not pretend to be able to reconcile this line of decision with the letter of the statute of frauds; and the cases above cited proceed only upon the ground, that they belong to a class-of eases which, by a series of decisions, sanctioned by ltgislative policy, have come to be regarded as excepted from the-operation of the statute.

One question remains. Was the district court precluded; from affording the relief prayed for, on account of the lapse of time occurring between the time of the mistake and the time of the commencement of these proceedings ?

The mistake was made in 1819. The action to correct it was commenced in 1854 — a period of thirty-five years. But the district court find as a fact, that the mistake was not discovered by Longworth and wife until after the death of Ormsby,. and it is conceded that these proceedings were commenced within twenty-one years thereafter.

Now, this is not a case in which a court of law might have-concurrent jurisdiction with a court of equity; but is one of a purely equitable nature, not cognizable in a court of law-In such cases, the statute of limitations has no direct application, in them; courts of equity do not act in obedience to the-statute of limitations, “ but will apply the doctrine of neglect and lapse of time according to discretion, regulated by precedents and peculiar circumstances.” Hoffman V. C. in Lawrence v. Trustees, etc. 2 Denio, 581. It is a familiar and settled doctrine, that where, in a proper case, relief is sought in a court of equity on the ground of fraud, the lapse of time-generally applied by courts of equity, in analogy to the statute of limitations, will be reckoned only from the time of the discovery of the fraud.

The reason on which this doctrine rests, it is said by Lord Redesdale, is this, “ that as fraud is a secret thing, and may remain undiscovered for a length of time, during such time, the statute of limitations shall not operate; because, until discovery, the title to avoid it does not completely arise.” And,. “ pending the concealment of the fraud, the statute of limitations ought not in conscience to run; the conscience of the party being so affected that he ought not to be allowed to avail himself of the length of time, but after the discovery of the fact imputed as fraud, the party has a right to avail himself of the statute; he has a right to say — ‘ you shall not bring, this matter unto discussion after such a length of time, when it is only through your own neglect that you did not do so within the time limited by the statute.’ ” Hovenden v. Lord Annesley, 2 Sc. & Lef. 634.

And in cases like this, where the correcting of the mistake disturbs no possession, and interferes with no investment in the way of improvements, or the like, made on the faith of the mistaken instrument, we can not see why, as a matter of principle, the same rule should not apply to cases of mistake. Mistake is as much “ a secret thing ” as fraud is; and for the party benefited by the fraud or mistake to set up the lapse of time against a case arising from either, until after the discovery of the fraud or mistake, is alike unconscionable in either case. And that the same rule does apply in the one case as in the other, was distinctly held by the English court of exchequer, sitting in equity, in Brookshank v. Smith, 2 Younge & Collyer’s R. 58. In that case, certain stocks had, by mistake, been transferred by trustees to a party not entitled to them; and the court decreed a re-transfer of the stocks; the time fixed by the statute of limitations for the commencement of an action at law in analogous cases, having •expired after the mistake, but not after its discovery. And the same doctrine is asserted by Judge Story. 2 Story’s Eq •sec. 1521a. And, moreover, it must be borne in mind that the plaintiffs have all along been, and still are, in possession, claiming a fee simple estate, of the premises intended to be conveyed by the instrument sought to be corrected. And lapse of time does not operate against the holder of a legal title in possession, filing his bill to extinguish an adversary claim, to the extent that it does against a complainant filing a bill demanding a surrender of the legal title and possession from the holder of them. Reardon v. Searcy’s heirs, 1 Litt. 53; Moore’s trustees v. Howe’s heirs, 4 Mon. 198; Miller v Bear, 3 Paige, 466. It is true, this principle does not apply -in all its force, to a case like this, when, under the deed in its uncorrected form, the complainants have, in virtue of the life estate thereby granted, been hitherto entitled to the possession; still, we think it has some application, and is entitled to some weight, in view of the facts found by the district court, that the Longworths always claimed a fee simple title' in the premises, and they always, and Oliver Ormsby during-his lifetime, treated the property as if the former had in it an absolute estate in fee simple.

We conclude, therefore, that, upon the facts found by the-district court, and which, as the evidence is not embodied in the record, are not open to review by us, there was no error in the decree of that court.

Yet we deem it proper to say that, in respect to this last point, arising upon lapse of time, it must be admitted, and we-feel that we are going a great way, and to the extreme verge-of what a prudent administration of justice will admit; and" we therefore take occasion to add a word of caution, that this case may not be drawn into -precedent, except in cases like this, where the correcting of the mistake involves no change • of possession, disturbs no investment, and leaves the future enjoyment of the property involved to go on in harmony with-the prior acts of the parties in interest.

Judgment of district court affirmed.

Scott, C.J., and Sutliee, Peck and Gholson JJ., con-rcurre d.  