must be determined by the true nature and purpose of the action. If section 318 applies the action is not barred, but if subdivision 4 of said section 338 should be given the construction and application contended for by appellant, the action is barred. Said section prescribes a limitation of three years, and said subdivision reads as follows: "4. An action for relief on the ground of fraud or mistake. The cause of action in such case not to be deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake."

There seems to be no controversy that the parties to the partition, Troop and Parker, first became aware that the partition deeds included in the description lands not owned by them or by either of them when Nurse made the survey. These deeds were executed before the line of partition was surveyed by Nurse. That line was accepted and treated by both parties, for a time at least, as the true line. The defendant admitted upon cross-examination that the intention in running that line was to divide the lands "owned" by the parties. But it is also reasonably clear that when the corrected line was made by the surveyor-the one upon which the fence and furrow were made-it was discovered that the description contained in all the deeds included land which belonged to the United States; and the mistake in the description, which was clearly mutual, was then discovered. The date of that discovery is not precisely fixed, but it was after December 14, 1876, the date of the partition deeds, and prior to February 13, 1877, when Troop conveyed to the plaintiff. If, therefore, subdivision 4 of said section governs this case, it is barred.

But I think it is not an action for relief upon the ground of fraud or mistake within the meaning of that section, but that it is an action for the recovery of real property, and that the correction of the mistake in the deeds is merely incidental to that action.,

Troop was the actual owner of all the land within the

grant lying in block 2 south of the true dividing line established by Nurse, and Parker was the owner of all on the north side. By mutual mistake Parker acquired the legal title, but not the ownership, of a part of the land lying south of the line. If the plaintiff had had the legal title to the disputed portion, having been ousted from its possession,, he could have recovered the possession in ejectment; but without the legal title his only remedy was in equity, not only to obtain possession, but to recover the property, and these were the objects and purposes of the suit, and that section of the code. which relates to actions for those purposes is the one to which we must look.

Chapter 2 of the title relating to the time of commencing civil actions relates to the time of commencing actions for the recovery of real property, and section 318 of the Code of Civil Procedure found in that chapter is as follows: "No action for the recovery of real property, or for the recovery of the possession thereof, can be maintained unless it appear that the plaintiff, his ancestor, predecessor, or grantor was seised or possessed of the property in question within five years before the commencement of the action."

This section distinguishes between actions "for the recovery of real property," and actions "for the recovery of the possession thereof." Either of these actions may be maintained at any time within five years, not necessarily from the inception of the right of ownership or of possession, but if the plaintiff, or his ancestor, predecessor, or grantor "was seised or possessed" within five years before the commencement of the action, an action for either of these purposes may be maintained. The limitation is not from the date when the fraud or mistake occurred, nor from the date of the discovery of the facts constituting the fraud or mistake, but from the time when the plaintiff lost the seisin or possession, though such loss of seisin or possession resulted from the advantage taken by the defendant of such fraud or mistake. If the plaintiff had been per

mitted to peaceably occupy to the line of division for the space of five years after the line was run, the mistake could not affect his right to the possession of the disputed land; but, upon defendant's theory, he might have acquiesced in the line of division, and permitted the plaintiff to quietly and peaceably occupy to that line for three years, and then oust the plaintiff, refuse to correct the mistake, and cut off all right of the plaintiff to recover either the property or the possession, notwithstanding he had lost the possession but a week or a day before he brought his action.

In Smith v. Matthews, 81 Cal. 120, the plaintiff's grantor made a conveyance to the defendant's grantor, and by a mistake in locating one of the monuments too much land was included in the deed, but the land thus improperly included remained in the actual possession of plaintiff and his grantors. The court said: "The right of the plaintiffs to have their title to the land quieted, as against a claim asserted by the defendant under this deed, was not barred, and could not be, while the plaintiffs and their grantors remained in the actual possession of the land, claiming to be the owners thereof, and the actual owners, as against the defendant, of all interest therein except the mere naked title."

What has been said upon this point is greatly strengthened by reference to chapter 3 of said title, in which section 338 of the Code of Civil Procedure is found. This chapter opens with section 335, which is as follows: "The periods prescribed for the commencement of actions other than for the recovery of real property are as follows." This section, as well as the title of the chapter, clearly shows that the limitations therein fixed do not apply to actions where the effect would be to cut off any portion of the limitation of five years.

In Oakland v. Carpentier, 13 Cal. 540, 552, the court considered section 17 (Woods' Digest, 47), which is the same as subdivision 4 of section 338 of the Code of Civil Procedure, except that the words "or mistake" have been inserted after the word "fraud." That was

an action to set aside or cancel a deed upon the ground of fraud, to which was pleaded said statute of limitations. The court said: "We think that this provision has no relation to an equitable proceeding to set aside a fraudulent deed of real estate when the effect of it is to restore the possession of the premises to the defrauded party. In such a case the action is substantially an action for the recovery of the real estate; indeed, it is literally."

In Stewart v. Thompson, 32 Cal. 261, the action was to cancel certain conveyances alleged to be clouds upon plaintiff's title. The court, by Sanderson, J., said: "We consider that the limitation of three years does not apply to an action of this character. It is true that the clouds in question have their inception in fraud; but fraud is not a universal characteristic of the cause of action, and cannot, therefore, be adopted as a test of the true nature of the action, when its position in the various categories presented by the statute of limitations. comes to be considered. We so held in effect in Hager v. Shindler, 29 Cal. 60. . . . . If fraud exists, it does so merely as a feature in the case, and not as a test of the true nature of the cause of action within the meaning of the statute." A similar principle was laid down in Clausen v. Meister, 93 Cal. 555, 557.

There are cases affecting real estate, however, where the statute under consideration has its proper application, and where, but for this provision, the plaintiff would be remediless. The case of Duff v. Duff, 71 Cal. 513, is an illustration. There, William Duff, who resided in the state of Michigan, and owned real estate in this state, gave a power of attorney to his brother Richard, who resided here, authorizing him to sell and convey said real property. Richard conveyed portions of it to each of two other brothers, without consideration, but concealed from his principal the fact of such conveyances, and William died in Michigan without knowledge of the fact. These conveyances were made at different dates, extending from July, 1866, to April, 1872.

William's widow first learned of the facts concerning these conveyances in April, 1879, and brought her action within three years thereafter; and it was held that the complaint stated facts sufficient to constitute a cause of action, and this, notwithstanding the conveyances were made more than five years before.

In Boyd v. Blankman, 29 Cal. 20, 870 Am. Dec. 146, the statute of five years was pleaded by the defendant, and the plaintiff replied the discovery of the fraud within three years. The judgment in favor of the defendant was reversed.

In Moore v. Moore, 56 Cal. 89, the plaintiff was induced by fraud and imposition to execute certain conveyances without consideration, by which she conveyed away all her interest in the property of her deceased. husband.

These deeds were executed in November, 1871, and the fraud was not discovered until October, 1877, and her action was commenced within three years thereafter. The form of the action does not appear from the case as reported. A demurrer to the complaint was sustained by the court below, and judgment entered for defendants. This court reversed the judgment.

People v. Blankenship, 52 Cal. 619, cited by appellant, was an action brought by the state to cancel a patent issued to the defendant for state lands upon the ground that the patent was fraudulently procured. No other relief was sought, and no other relief was pertinent or necessary under the complaint. The reported facts are meager, and the opinion of the court is brief, and no authorities are cited. The question arose upon demurrer to the complaint based upon the statute of limitations here under consideration. The effect of a cancellation of the patent would appear to be the same as the cancellation of the deed in Oakland v. Carpentier, supra, viz., to restore the land to the rightful owner, and that hence it was an action to recover the property to which the three years' limitation did not apply; the court, however, regarded it as an action for relief upon