Wilbur v. Wilson

PEEK, J.

The defendant Samuel J. Wilson appeals from a judgment which reformed a deed to real property and allowed the plaintiffs an abatement of the purchase price paid to the defendants as to the sellers for the property.

The controversy arose out of the sale and purchase of farm land located in Stanislaus County. Plaintiffs contended that they were led to believe that the tract they procured from Wilson and his wife, Anna, who died prior to the institution of this action, contained 94 acres, whereas it in fact contained only 79. They sought reformation of the deed and an abatement of the purchase price under two theories; namely that defendants had fraudulently misrepresented the quantity of land, and/or that there was a mutual mistake of fact as to the number of acres contained in the tract. Tie trial court found

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that both theories were substantiated by the evidence and hence granted the relief sought.

Appellant contends that the judgment should be reversed because the cause of action was barred by section 338, subdivision 4, of the Code of Civil Procedure (a cause of action based on fraud or mistake must be brought within three years from the date of discovery). Since the alleged fraud was committed on or about July 18, 1951, and the action was not commenced until December 10, 1954, it would appear that appellant has made out a prima facie case for the application of the statute. However the plaintiffs avoided the literal terms of the statute by pleading and proving facts which showed that their delayed discovery was reasonable.

(Lady Washington Consol. Co.

v.

Wood,

113 Cal. 482 [45 P. 809].)

To bring themselves within the rule above stated, the plaintiffs contend that they had no notice that anything was amiss until 1953. That year they received a tax assessment based on 106 acres, whereas in the two previous years it had been based on 93 acres. This fact aroused their suspicions, and as a consequence they hired a licensed surveyor to determine the number of acres in the tract. It was as a result of this survey that the shortage was discovered. The plaintiffs argued that the action was brought well within three years from the date of actual discovery, and that they were apprised of no facts which would require them, as reasonable persons, to make an earlier inquiry.