Full opinion text
FISHER, Chief Justice. This suit was instituted by the appellant March 23, 1896, against appellees Charles Pace and wife Jessie Pace, and one W. H. Richardson, upon a note of date February 20, 1893, executed by Charles Pace and due November 1, 1896, and to foreclose a deed of trust executed at the same time by Pace and wife upon certain lands therein described, to secure said note. The description of the land, as given in the deed of trust and as stated in appellant’s petition, is as follows: “Three hundred (300) acres, more or less, a part of the T. Bissell league, beginning at the ET. W. line of said league, at the ET. corner of said J. R Pace tract and W. corner of W. L. Staniforth tract. Thence S. 60 E. 1036 yrs., with Staniforth line, to Ziveley’s corner; thence to Ziveley’s corner; thence south 50 W. 42 yrs.; thence south 80 W. 365 yrs. up the creek; thence south 49 E. ‘585 yrs.; thence north 40 E. 570 yrs. (said six lines last mentioned being boundaries of the 56 acres forming part of our homestead); thence south 60 E. 987 yrs., with Beckett’s line, to ET. corner of Stanley’s 60-acre tract; thence south 30 W. 730 yrs.; thence S. W. 343 yrs.; thence south 60 E. 433 yrs. to the Bissell league line; thence south 30 W. to the south corner of the James R Pace tract; thence north 60 W. to the south corner of the D. 0. Pace’s 105-acre tract; thence with D. C. Pace’s line north 50 E. 430. yrs. and north 19 E. 690 yrs. to the creek, a corner of said 56-acre tract; thence westerly with the creek to D. C. Pace’s west corner; thence north 60 W. to the Bissell ET. W. line; thence ET. 30 E. 1131 yrs. to the beginning; excepting therefrom 144 acres, forming a part of our homestead, bounded on the El. E. by the dividing line 987 yrs. long, between our land and Beckett’s, on the south E. by Stanley’s 60-acre tract; on the El. W. by said 56-acre tract; and on the S. W. by a line parallel to said 987-vara line, at such a distance from it as will include 144 acres; which said deed of trust bears date 30th February, 1893, and was on the 10th day of May, A. D. 1893, duly recorded in vol. 109, page 188, etc., of the mortgage records of Travis County, State of Texas.” On the 31st day of Elovember, 1896, Charles Pace and wife filed their first amended original answer, in which the liability of Charles Pace on the note was admitted, and in which it was also asked that the deed of trust and a certain instrument executed by Pace designating appellees’ homestead be reformed so as to correct the description of the land which was excepted from the operation of the deed of trust. This relief is based upon .allegations to the effect that by a mutual mistake of all the parties to these instruments of writing, or by reason of the fraudulent and wrongful conduct of J. Gordon Brown and B. L. Brown, the former the payee named in the note and the latter the trustee named in the deed of trust, the instruments did not correctly describe the 144 acres which the parties agreed and understood and intended should be excepted from the operation of the lien created by the deed of trust. Instead of being as described in the deed of trust, that instrument should have described a different tract of land out of the southeast end of the tract described in the deed of trust, which is as follows: “That the said homestead tracts of land, embracing 300 acres, and which was to be designated as the homestead of these defendants, and was not to be covered by said lien, it was agreed, as aforesaid, should be described as follows, to wit: Two tracts of land out of the James B. Pace original tract in the T. Bissell league in the county of Travis and State of Texas; (1) 56 acres, the same conveyed to Chas. Pace by R. E. White and wife, by deed dated July 5, 1881, recorded in the said Travis County deed records in book 51, page 112, here referred to for description, whereon the home and residence of these defendants was situated; (2) 144 acres described as follows, to wit: Bounded on the west by D. C. Pace’s 105-acre tract; on the south by the original south line of the James R. Pace survey; on the east by the Nolan tract and the 60-acre tract of Stanley; and on the north by a line running parallel with the south line of this tract at a sufficient distance north of said south line to give 144 acres, which north line of this tract is also parallel with the 987-vara line on the south of Beckett’s tract mentioned in said deed of trust.” Defendant Richardson filed an answer disclaiming any interest in the property in controversy. , November 21, 1896, the appellant filed a supplemental petition interposing a general demurrer to appellees’ answer, and also specially excepted to the same because it did not, with sufficient certainty, describe the 144 acres which was intended to be reserved from the operation of the deed of trust, and the appellees were barred in their remedy by the operation of the four years statute of limitation and stale demand and loches; and pleaded a general denial, and specially, that, on or about February 26, 1887, appellee Charles Pace executed and acknowledged a homestead designation, setting apart and describing as his homestead the 56-acre tract and the 144 acres described in plaintiff’s petition; and that the same was,immediately recorded in the proper records of the county used for that purpose; and that at the same time Charles Pace and wife executed and acknowledged and delivered to the plaintiff the original deed of trust to secure the note sued on, describing the 56-acre tract and the 144 acres as his homestead,' as described in the petition; and that the deed of trust was immediately recorded in the records of the county 'used for recording such instruments; and that the deed of trust sued upon, which was executed February 20, 1893, contained the same description as stated in the two instruments above mentioned (this deed of trust was recorded May 10, 1893); that if any cause of action existed to reform the deed of trust in question on the ground of mistake or fraud, it arose when the first two described instruments were executed, to wit, February 26, 1887, and is therefore barred by the statute of four years limitation; that if any fraud was committed or mistake made concerning the description of the land, the right to reform the deed of trust has become 'stale; and that by reason of the loches and negligence of appellees they are barred in their remedy in that they could and should, before signing the instruments, have read the same, which they negligently failed to do; and as there was no confidential or fiduciary relationship existing between them and the Browns, the agents of the plaintiff who negotiated the transaction, they should not have relied upon their representations; and that the mistake or fraud, if it ever existed, could and should have been sooner discovered; that the record of the instruments, as above stated, was notice to the appellees as to what lands were described in these instruments, and thereby furnished the means of discovering the error in description, and that the appellees were wanting in diligence in failing to sooner make such discovery and instituting the action to reform. February 23, 1899, appellees filed their first supplemental answer, in effect alleging that, under a pretended judgment foreclosing the deed of trust sued upon and a purchase of the land therein described at foreclosure sale by the plaintiff, which judgment has subsequently been annulled and set aside, the ¡Dlaintiff went into actual possession of the land described in the deed of trust, using and enjoying the rents and profits thereof, which are reasonably worth $1000, for which amount appellees ask judgment. To this relief appellant, by supplemental petition, responded, that, by virtue of the terms of the deed of trust, upon default in payment, plaintiff or the trustee mentioned in the instrument was authorized to enter upon and take possession of the premises described in the deed of trust; and that the appellant is only responsible to appellees for the sum of $145.20, it being the amount of rents received and collected with due diligence by appellant when in possession of the premises; and, further, that the appellees had been in the possession, use and enjoyment of 144 acres of the land covered by the deed of trust, in the event it should be reformed, and that the rental value thereof is equal to the rental value of the lands which appellant has been in possession of, and asked that, if it be found liable for rents, the two claims for rent be offset. The case was submitted to a jury, and verdict found in favor of appellant for the amount of the note, principal, interest, and attorneys fees, and the sum of $288, the rental value of the land which should have been but was not covered by the deed of trust; and in favor of appellees, Pace and wife, as to the issue seeking a reformation of the deed of trust as to the description of the land which was exempted from its operation; and that the failure of the instrument to correctly describe the land was the result of a mutual mistake of both parties to the instrument; and found in favor of appellees the sum of $832 as the rental value of the lands wrongfully held in possession by appellant. The decree entered upon the verdict was to the effect that the deed of trust be so reformed as to except from its operation the 144 acres in controversy, describing and locating it as stated in appellees’ answer; and that it, with the 56-acre tract, be excluded from the operation of the deed of trust as the homestead of the appellees, with a decree foreclosing the deed of. trust upon all of the remaining lands described in that instrument, applying it also to that part of the survey, which, according to the terms of the instrument, by mistake, was described as the 144 acres which was reserved by appellees as a part of their homestead. Judgment was also rendered in appellees’ favor for $832 as the rental value of the land in possession of appellant. The court refused to render judgment in appellant’s favor for the amount of $288 found by the verdict as the rental value of the lands which should have been, but were not covered by the deed of trust. From this judgment the appellant prosecutes its appeal. We find the following facts: That appellee Pace executed the note described in plaintiff’s petition, and is bound and liable therefor for the amount stated in the judgment of the court. On the 26th of February, 1887, Charles Pace executed to J. Gordon Brown a promissory note for the sum of $1500, borrowed money, and to secure the payment of the same, the appellees, Charles Pace and wife, at the same time, executed a deed of trust upon the lands described in the plaintiff’s petition; and about the same time and as a part of the transaction in executing the note and the deed of trust, Charles Pace signed and executed an instrument, which purports to be a homestead designation, wherein the following lands are described and mentioned as his homestead: “Two tracts of land out of the Jas. B. Pace original tract in the T. Bissell league, in the county of Travis and State of Texas, being (1) 56 acres, the same conveyed to me by B. E. White and wife, by deed dated July 5, 1881, recorded in the records of Travis Count3, book 51, page 112, and here referred to for description, whereon my home and residence are situated; (2) 144 acres lying east of said White tract, bounded on the northeast by the 987-vara line dividing my land from Beckett’s tract; on the southeast by Stanley’s 60-acre tract; on the northwest by the 56-acre tract bought by me from B. E. White, and D. C. Pace’s 105-acre tract; and on the southwest bjr a line parallel to said 987-vara line at such a distance from it as to include 144 acres.” This deed of trust and the homestead designation were properly acknowledged and recorded in the county records of Travis County on the day of their execution. The deed of trust, in giving the description of the land reserved from its operation as the homestead of appellees, practically describes the same land that is above described in the homestead designation. In lieu of the note and deed of trust as above stated, Chas. Pace, on the 20th of Februar}', 1893, executed the note sued upon; and at the same time appellees executed the deed of trust foreclosed in this suit, which was executed for the purpose of securing the note in suit, and embraced the lands described in the plaintiff’s petition. This instrument was properly acknowledged, and was duly recorded in the mortgage records of Travis County on the 10th day of May, 1893, and practically describes the homestead of the appellees which was reserved from the operation of the deed of trust as the same description as given in the homestead designation executed by Pace, as heretofore set out. The note sued upon was executed and delivered by Pace to J. Gordon Brown, and the deed of trust last described, which was executed to secure the same, was in favor of B. L. Brown, as trustee. Both of the Browns, at the time of the execution of the instruments previously described and at the time of the execution of the instruments last described, and during the time of all the negotiations and transactions testified to by the witnesses, were the agents of the appellant, who is admitted to be bound by the acts and conduct of the Browns in and concerning the various transactions disclosed by the record. All of the entire tract of land described in the deeds of trust, including that portion subject to the same, as well as that part which was or should have been reserved from the operation of these instruments as the homestead of appellees, embraces about 496 acres of land; and it reasonably appears, from evidence found in the record as well as the description given in the homestead designation, and in the description given of the lands mentioned in the deed of trust; _that all of this 496 acres, was originally a part of the James R. Pace survey, which was a part of the Bissell league. The homestead designation describes a part of this 496 acres which is set apart as the homestead as a part of the James R. Pace original tract in the T. Bissell league. The deed of trust ■ describes the land as a part of the Bissell league, "beginning at the northwest line of the league, at the northwest corner of the said J. R. Pace tract.” Then, further on, there is a call, "thence south 30 west to the south corner of the James R. Pace tract,” clearly indicating that the land lying between the north corner of the James R. Pace tract and the south corner of the James R. Pace tract, is a part and parcel of the James R. Pace survey. Pace testified: "I own 496 acres on the James R. Pace tract, including the 56 acres which I bought from Emmett White,” evidently meaning that the 496 acres here mentioned is the entire tract of land described in the deed of trust, which instruments were intended only to incumber 300 acres of this tract. In order to fully understand the description of the land covered by the deed of trust, and as an aid in identifying the land which appellees contend was to be excepted from the operation of the deed of trust, and which they intended to set apart as a part of their homestead, we here refer to the following plat giving a description of the boundaries of the land, and showing the location of the different surveys adjacent thereto; which map, with the figures, lines, and written matter therein contained, we find correctly sets out and describes the location of the lands described in the deed of trust, and correctly describes the lines of the surveys therein mentioned, and correctly states the 144 acres of land which was intended by all the parties to the deeds of trust to be excluded from their operation, and which was intended should have been described as a part of the homestead of appellees; and we find that this 144 acres is a part of the James R. Pace survey out of the southeast corner of the 496 acres owned by Pace at the time the deeds of trust were executed, which does not include the Holán tract, as shown on the map. The map or plat is as follows: ' • The lower survey line as given on the map is the line of the James R. Pace survey. The survey marked “Nolan tract” was originally part of the James R. Pace survey. The lines and boundaries of the Nolan survey are not given or shown, other than as stated on the map; but we find from the evidence of witness Wallace that this map is correct in stating the lines of the Nolan survey. We find from the evidence of witness Pace that the lines of the Nolan are recognized and agreed upon between him and the present owner of the Nolan survey. We need not make any finding with reference to the 56-acre tract, marked on the map as “Chas. Pace,” for there is no controversy about this tract, as it is conceded it was a part of the homestead of Pace and is not incumbered with the deeds of trust; and it is conceded that there was no mistake made in the description of this tract, but the controversy arises as to the location and description of the 144 acres, the balance necessary to make up appellees’ homestead. The deeds of trust, as to the 144 acres which was exempted from their operation as a part of the homestead of the appellees, locate the same adjoining and east of the 56-acre Charles Pace tract, as shown on the map, and along with and south of the Beckett line, and extending east to the west line of the Stanley tract, as shown on the map, as far south as the red line, as shown on the map, which line represents the south line of the 144 acres given in the homestead designation and in the deeds of trust as a part of the homestead of appellees. We find that before and at the time that the original deed of trust was executed, in 1887, there was an understanding and agreement between Charles Pace, who acted for himself and his wife, and the Browns, that the homestead of appellees should embrace the 56-acre tract and 144 acres out of the southeast corner or end of the 496-acre tract owned by Pace; and in this connection it is well to state that Charles Pace testified that it was not to include the Nolan tract. This 144 acres was not to include any part of the D. C. Pace 105-acre survey, which it is admitted is not covered by the deeds of trust. It was agreed that this 144 acres should be reserved from the operation of the deed of trust. At that time, the appellees had in cultivation, using and enjoying the same as a part of their rural homestead, about 100 acres of land, about 20 acres of which was on the Charles Pace 56-acre survey, and the balance was principally located in the southeast end of the 496-acre tract; and it was agreed that the lines of the 144 acres were to be so run as to take in the cultivated lands in the southeast end of the 496-acre tract. It was agreed that the lines of the 144 acres should run so far north as to take in and embrace appellees’ cultivated land. And in this connection we find that the substantial effect of the agreement as to the location of the 144 acres which should be reserved to the appellees was that it would include and embrace the 144 acre tract substantially as described in appellees’ answer and the judgment of the court. This 144 acres would not include and was not intended to include any of the D. C. Pace 105-acre tract, nor the Rolan tract, and would embrace all of the land south of the 1618 2/5-vara black line, as shown on the map, excluding the Rolan and the D. C. Pace. The appellees at that time-had their dwelling and residence upon the Charles Pace 56-acre tract. The most of their cultivated land was upon the 144 acres south of the black line, as shown on the map, and as described in the judgment of the court as the land which was intended to be excepted from the operation of the deed of trust. This cultivated land at the time was used and occupied and enjoyed and cultivated by Pace and wife as a part of their rural homestead. The deed of trust as reformed by the judgment of the court separates this 144 acres from the 56-acre tract a short distance, as will appear from the map. The Browns, the agents of appellant, were intrusted with the preparation of the deed of trust and the homestead designation, and with the duty of correctly describing the lands that should be embraced in these two instruments. These instruments were prepared by the Browns or under their direction; and it was understood that the description of the land that should be covered by the deed of trust and that exempted from its operation should be stated and given in these instruments as had been verbally agreed upon. About the time these instruments were signed and executed, Brown represented and stated to Pace that they were drawn up and prepared in accordance with the previous understanding and agreement of the parties, and that the lands which should be covered by the deed of trust and should be exempted from its operation, were correctly described as agreed. Pace at the time reposed confidence in the integrity and the honesty of the Browns, and at the time of executing and signing the instruments he believed that the representations so made by them were true and that the land was described according to the previous verbal understanding. He did not examine the instruments critically, in order to see if the lands had been correctly described; but, upon the contrary, the appellees at the time of executing the instruments believed that the land was properly described, as had been previously agreed upon, and if they had known to the contrary, they would not have executed the papers; and in signing the same, the appellee Charles Pace relied upon the truth of the statements and representations made by Brown. We find that these representations and statements made by Brown, as to the description of the land that should be exempted from the operation of the deed of trust, were not true, and that they operated in deceiving and misleading Pace in executing the instruments. We do not say that these statements and representations were intentionally false, but possibly they were made by Brown under the mistaken belief that the lands had been correctly described, so as to locate the 144 acres, the homestead of appellees, as had been previously agreed upon. We find that the Browns, in preparing the deed of trust and the homestead designation, did not correctly describe the location of the 144 acres, but by mistake, the location of the 144 acres was described as stated in the deed of trust and in the homestead designation; and that it should have been described substantially as stated in appellees’ answer and the judgment of the court. We also find that the appellees in signing and executing the deed of trust did so under the mistaken belief that Brown had correctly prepared the same, and that the 144 acres were correctly described, as previously agreed upon. We also find that, about the time that the deed of trust sued upon, of date 1893, was executed, the Browns requested of appellees that they execute this latter instrument, which we find they did execute, and it was executed in lieu of the deed of trust that was executed in 1887. At the time of the execution of the deed of trust of 1893, the appellees had not discovered the mistake in the description in the previous deed of trust or in the homestead designation, nor had they discovered that the representations previously made by Brown were not true; and when they executed the instrument of 1893, Brown represented and stated to Pace that it was prepared in accordance with the previous paroi agreement-and understanding; and there is evidence which shows that Pace believed these representations, and believed that the instrument of 1893 was substantially as had been previously agreed upon; and that in signing the same, he relied upon the statements of Brown, and if he had known that the statements were not correct, he would not have signed the last deed of trust. The misdescription of the 144 acres intended to be excepted from the operation of the deed of trust was a material error, in that the land which was actually reserved by the paroi understanding was much of it cultivated, and was of greater value than the 144 acres which the deeds of trust by their terms, though mistakenly, reserved to appellees as a part of their homestead. The last deed of trust was also prepared by the Browns or under their direction. The appellees did not, until the 14th of June, 1896, discover that the representations of the Browns, as before stated, were not true, and that a mistake had been made in the description of the 144 acres, as before stated. The evidence does not show that anything occurred from the time of the execution of the first deed of trust of a nature calculated to excite the inquiry of the appellees into the existence of any mistake or fraud committed in the preparation and execution of the deeds of trust, down to the time that these things were actually discovered. The appellee Pace, in signing the last deed of trust, did not critically examine the same and relied upon the representations of Brown as to its contents and the description given of the land; and he and his wife at the time believed that it correctly described the 144 acres, as had been previously agreed upon; and this last instrument, as well as the former deed of trust, were both executed and signed by the appellees under the mistaken belief that they exempted from the operation of those instruments the 144 acres, as had been previously agreed upon; and there was a mutual mistake of all the parties to the transaction, in the preparation and execution of the deeds of trust, in creating a lien upon the 144 acres described in appellees’ answer and the judgment of the court, which should have been excepted from the operation of those instruments as a part of the homestead of appellees. Appellee Pace, in effect, testified that R. L. Brown, after the execution of these instruments, admitted that the mistake had been made in the description of the 144 acres, as is claimed by the appellees. We find that the appellant, some time after the execution of these instruments, took possession of the 144 acres, and that the amount of the verdict and judgment in favor of appellees against appellant for the rent and use of the same is justified by the evidence. The propositions submitted under appellant’s third and fourth assignments of error complain of the refusal of the court to sustain its second and third special exceptions, because it is claimed that from the averments of appellees’ answer, the remedy to reform the deed of trust and correct the mistake is barred by the four years statute of limitation, and by loches, and that the action is stale. The second exception raises the question of limitation. The third special exception is as follows: “And further answering, plaintiff specially excepts to said first amended original answer and cross-petition, and says that same seeks to cancel and reform a written contract on the ground of fraud or mutual mistake; that said pleading alleges that said cause of action or right to cancel and reform said instrument came into being on February 26, 1887, not quite ten years before said pleading was filed, and said cause of action or right first asserted; that it shows upon its face that no confidential relations existed between R. L. Brown and J. Gordon Brown on the one hand and said defendants on the other, and that their interests were adverse to each other, and that they were dealing at arm’s length; that it further shows upon its face that the description of the 144 acres in the homestead designation and two deeds of trust, in regard to which the mistake or fraud is alleged, was of the simplest and most easily understood nature possible, and that defendant Charles Pace, three times, and defendant Jessie Pace twice, in the most solemn manner, executed the instruments containing such description, and that, if they did not discover what was contained in the instrument they were signing and acknowledging, it was their own gross, inexcusable negligence that prevented; that said pleading does not show that any artifice to conceal said alleged fraud or mistake was practiced by plaintiff, or that the said homestead designation and deeds of trust and their recorded copies were concealed from said defendants, or that said defendants examined the public records of Travis County, or made any effort to discover the contents of said instruments which they are alleged to have repeatedly signed without knowing what they were; that it is not alleged that defendants, or either of them, were idiots, or weak-minded, or unable to read, or incapacitated from performing the simplest functions of a property holder; that said pleading further shows that said defendants have been during said time living upon said property, that their means of discovering any mistake was as good and in fact much better than those of plaintiff, and fails utterly to give any excuse for their long delay and negligence, but shows that said attempt to reform said written contract is a stale demand, barred by the loches of said defendants and the four years statute of limitation, and can not be considered or acted upon by a court of equity.” In order to understand the questions raised, it is necessary to state some of the principal averments of the answer. It is there in effect stated, that on the 26th day of February, 1887, appellee Charles Pace executed his note to J. Gordon Brown, for the sum of $1500, and to secure same both appellees executed a deed of trust to E. L. Brown, conveying the land described in appellant’s petition-; and that, about the same time, Charles Pace executed a homestead designation describing as his homestead the land mentioned in the description given in appellant’s petition as excepted and reserved from the operation of the deed of trust. That appellee Jessie Pace did not join with her husband in the homestead designation, and did not know of the description therein given; that such description in the deed of trust and the homestead designation as to the 144 acres which should be reserved to appellees as their homestead, was placed and entered into the deed of trust and the homestead designation by and through the mistake of all the parties to the transaction, or was the result of the fraudulent conduct of the Browns, who prepared these instruments; that.there was, before the execution of these papers, a verbal agreement and understanding between the appellee Charles Pace and the Browns, that the deed of trust should only apply to the pasture lands upon the tract of 496 acres described in the instrument, and that the homestead of appellee which should be reserved from the operation of the deed of trust, and which should be described in the homestead designation, should be the 56-acre tract (about which there was no controversy) 'and 144 acres to be cut off the southeast end of the tract of 496 acres, so as to embrace the land in cultivation then used by Pace and wife as a farm for homestead purposes (this 144 acres is fully described in the answer, which corresponds with the same description given in the judgment of the court); and that the Browns were intrusted with the preparation of the deed of trust and the homestead designation, and that the same were to be prepared in accordance with the agreement as stated; that the Browns prepared or caused to he prepared the deed of trust and homestead designation, which, before the execution thereof, they represented" to appellee Pace were in strict accordance with the agreement as stated, and that the land described as reserved by appellees as their homestead was the 56-acre tract and the 144 acres embracing the cultivated land off the southeast end of the 496-acre survey; and that the deed of trust covered the pasture lands and the balance of the 496 acres; that the appellees not knowing or suspecting that these instruments applied to or covered different land than was contemplated and agreed upon, and believing that they were prepared in accordance with the agreement, and relying upon the representations of the Browns, and believing same to be true, they signed and executed the deed of trust, and Charles Pace signed and executed the homestead designation; that the deed of trust sued on, which was executed February 20, 1893, was prepared by the Browns, and was in renewal of the one previously executed; and that at the time the same was signed and executed by appellees they understood and believed, and the Browns so represented to them, that it covered and described the'lands called for in the verbal agreement heretofore stated; and believing such was the case, and relying upon the statements and representations of the Browns, they signed ' and executed this last deed of trust; that the homestead designation and neither of the deeds of trust correctly described the 144-acre tract which should be reserved to appellees as a part of their homestead; but, on the contrary, the deed of trust covered the cultivated land in the southeast end or corner of the survey, which was a part of appellees’ homestead, and which was agreed should not be embraced in the deed of trust as a part of the land subject to the same; and that, instead of the instrument correctly speaking the contract as agreed, it located the 144 acres, which should have been reserved to appellees upon the pasture land; that by reason of the fraud in the nature of the representations and statements of Browns, the appellees were induced to sign these instruments, and they solely relied upon these representations, and they believed they could and did rely upon the good faith and fairness of the Browns in the preparation of the papers; that if they had known that the land which was reserved by the terms of the verbal agreement ivas not correctly described, they would not have executed these papers; that the mistake is material, which is fully shown by the value given in the answer as the difference between the land described as appellees’ homestead and what should have been described; that, for the first time, on the 14th of June, 1896, they discovered that they were deceived as to the description of the land, and up to that time they fully believed that it was correctly described. The answer then proceeds to set out the facts which led to the discovery, and in effect states that, after that, the Browns admitted that a mistake was made and that the description given did not accord with that verbally agreed upon. •The appellant’s cause of action is based upon the deed of trust executed in 1893. The answer of appellees was filed less than four years from the date of that instrument. Where there is no fraud or mistake that would suspend the operation of the statutes of limitation, the four years statute would apply. Considering the question of limitation independent of the elements of fraud and mistake set up in appellees’ answer, we do not think that their action to reform was barred. Appellant relied upon the deed of trust of 1893, and thé answer attacking that instrument being filed less than four years from its date, ivas in time. It is no answer to this view of the question to say that the appellees could have, prior to that time, instituted a suit to reform the first deed of trust executed in 1887, because upon that instrument no relief is asked by appellant. A failure to urge the action to reform the previous instrument would not operate as a bar for relief against the last deed of trust, when that relief is asked, as in this case, within four years from the date of its execution. It is true, according to the averments of the answer, a mistake was committed and a fraud was perpetrated in the execution of the first deed of trust; but it is also alleged that the same mistake and fraud were committed in the execution of the last deed of trust. If the facts as pleaded, which constituted the verbal agreement, should have gone into and become a part of the last deed of trust, and the appellant, through its agents, represented that this last instrument was prepared in accordance with the agreement, and such representations were not true, it would be a fraud that would directly affect this instrument, which the appellees could assert when it was sought by appellant to enforce it. But, independent of this view, if the right of reformation was traced back to the time of the execution of the first deed of trust, we do not think that it can be said, as a matter of law, from the averments of the answer, that the action of the appellees to reform is stale or is barred by limitation, either on the ground of fraud or mistake. In the case of Oldham v. Medearis, 90 Texas, 506, the rule that suspends the operation of the statutes of limitation on the ground of fraud is applied to cases of mistake. Where relief is sought on the ground of fraud or mistake, stale demand and the statutes of limitation do not commence to run until the fraud or mistake is discovered, or until it could have been discovered by the exercise of reasonable diligence. It is clear from the averments of the answer that there was no actual discovery of the mistake or fraud until a few; months before the answer was filed. The answer, in effect, alleges that after the execution of the deeds of trust the appellees had no knowledge of the existence of any mistake or fraud, and it is in effect stated that no grounds of susany mistake or fraud, and it is in effect stated that no grounds of suspicion arose after that time that would excite inquiry as to the existence of fraud or mistake. It is also stated that the appellees placed confidence in the Browns, and relied upon the truth of their statements. If nothing occurred to excite the suspicion of the appellees, and they continued to rely with confidence upon the statements of the Browns that the written instruments correctly embodied the contract, the question then becomes one of fact as to when inquiry should commence to ascertain the existence of a mistake or fraud. There is no rule of law that prescribes a definite time in which such diligence should be exercised, nor at what particular time in the progress of a contract fraud or mistake should be discovered. These are questions of fact and not of law, to be applied and determined in each particular case, and no general rule has been nor could well be established that would be applicable to all cases where these issues are raised. It would be an anomalous doctrine to assert that where one has been defrauded, relying with confidence upon his adversary, he should immediately or within a definite and particular time enter upon a voyage of discovery to ascertain whether a wrong had been perpetrated, where there are no facts of circumstances occurring in the meantime suggestive of any impostion. In the well considered case of Dawson v. Sparks, 1 Texas Unreported Cases, 762, the Commission of Appeals, upon this subject, say: “What period shall be deemed to be a reasonable time within which a party entitled to rescind shall offer to do so, must depend upon the particular facts and circumstances of the case. Buford v. Brown, 6 B. Mon. (Ky.), 554. Whether Sparks should have been required to use diligence to discover the fraud, would depend on whether, under the circumstances, he had any reasonable grounds to believe that he had been imposed upon by the defendant's representations. If no circumstances of suspicion existed, at the time of the contract or afterwards, until the fraud became known to him, to induce the apprehension of its existence, it is against reason to expect that he should diligently inquire for facts concerning its mere possible existence. “It was held in Irving v. Thomas, 6 Shepley, 418, that a party can not be justly regarded as confirming a contract believed even to be fraudulent, because he did not repudiate it at an earlier period upon a mere violent presumption of fraud, instead of waiting until he can clearly establish it; and a fortiori, it would seem that a party who has been defrauded by false representations on which he relies, and has no cause to suspect they are untrue, is not to be deemed as having waived the fraud or as confirming the contract, unless, notwithstanding these facts, he shall nevertheless use diligence to ascertain whether fraud had been committed or not. The more consummate the fraud,—the more artful the devices employed to effect a contract whereby the confidence of the defrauded party is secured and induced to enter into it,—so much the less will the injured party be furnished with apparent grounds' for distrust; and, therefore, the more justified in not using diligence to discover the reality of the imposition.” Considering the issue of fraud as presented by the answer, we think the rule announced in this case should be applied. It is true, not quite ten years elapsed from the execution of the first deed of trust to the filing of the answer, but it can not be said, as a matter of law, that the appellees could and should, during that interval, have discovered the fraud prior to the time stated in the answer, or that, under the circumstances as pleaded, they should have, during that period, commenced the exercise of diligence to ascertain the' existence of facts which they in no wise contemplated existed. Such issues would properly be questions of fact to be passed upon by the jury. In Campbell v. McFadin, 71 Texas, 32, and Reed v. West, 47 Texas, 248, which were actions in equity to enforce the specific performance of contracts, it is held that what is a reasonable time for performance is a question of fact, which must depend upon the circumstances of each particular case. The same principle, by analogy, we think should apply here. The special exception also, in effect, urges the proposition that the appellees were guilty of negligence in not examining and inspecting the deeds of trust before signing the same, and in relying upon the statements and representations of their opponents. In answer to the first part of this contention, we refer to the ease of Chatham v. Jones, 69 Texas, 744, and the recent case of Conn v. Hagan, 93 Texas, 334, where the learned justice of our Supreme Court uses this language: “The defendant in error claims that Mrs. Conn was guilty of negligence in signing the deed of trust without reading it, and that therefore the court ought not to reform the instrument according to her testimony. If the failure to read the instrument was unexplained and there was no reasonable excuse for it, this proposition would be correct, but, when the party is misled by the fraudulent representations of the other party and caused, by confidence in such person and his representations, to sign the instrument without reading it, this does not constitute such negligence as will deprive the maker of the instrument of equitable relief from the consequences of the fraudulent representations.” In Chatham v. Jones, supra, it is held that whether a party was .guilty of negligence in signing and executing a paper without reading it, was a question of fact, and not of law. The case of Railway v. Kisch, L. R. 2 H. L., 120, is an answer to the concluding part of this contention. In the case cited it is stated that, where it is established that a misrepresentation has induced a party to •enter into a contract, it is no answer to his claim to be relieved from it to tell him that he might have known the truth by proper inquiry. He has a right to retort upon his objector, that, if he placed confidence in the .statement, he can not be charged with a want of caution because he believed it was honestly and truly made. This principle was approved by ■our Supreme Court in the case of Labbe v. Corbett, 69 Texas, 503. To the same effect are the cases of Roberts v. Plaisted, 63 Me., 335, and Matlock v. Todd, 19 Ind., 135. It is also contended in the special exception, that as the instruments were recorded, they operated as notice to the appellees of their contents, and that the appellees were guilty of negligence in not inspecting and examining the records of these instruments; for if such had been the -case, they could have readily discovered the mistake or fraud. We think a correct disposition of this question is indicated by what is said in the case of Meade v. Bumm, 32 New York, 278: “It is claimed in behalf of the appellant that the mortgage was duly recorded, and that the plaintiff was therefore chargeable with constructive notice that the .statements of the defendant as to its contents were false. No such fact is found by the referee, but if it were otherwise, it is sufficient to say that it .is neither the purpose nor the office of the recording acts to charge the .immediate parties with constructive notice of the precise contents of the instrument they execute, but to notify subsequent purchasers and incumbrancers of the rights such instruments are intended to secure.” The conclusion is reached that no error was committed in overruling the demurrers. We will here notice the fact that the questions of limitation, stale demand, and loches, raised by the demurrers just discussed, are not followed up by any assignments complaining of the verdict and judgment on these grounds. Therefore, in further discussing other points involved in the case, we are not required and will not pass upon the evidence so far as the questions of limitation, loches, and stale demand are concerned. Appellant’s fifth, sixth, seventh, and eighth assignments of error complain of the verdict and the judgment of the court on the ground that they are contrary to the evidence and that the evidence is not sufficient to support the same. The only proposition submitted under these assignments is as follows: “A court of equity will not reform a written instrument on the charge of mutual mistake, where its terms are unambiguous and supported by the testimony of one of the parties thereto; and the only testimony adduced to show mistake is that of the other party to the instrument* it being contradicted by facts and other witnesses, and is vague and uncertain as to the alleged terms of the agreement.” This proposition necessarily calls into review all of the evidence relied upon by the appellees to sustain the verdict and the judgment of the court. The evidence of Mrs. Pace is as follows: “I am the wife of the defendant Charles Pace. I signed the two deeds of trust, the one in 1887, and the other a renewal of the same, in 1893. When executing said papers, I understood that my husband had designated our homestead, embracing within its boundaries all of the cultivated land on the southeast end of the tract and the 56-acre tract bought from Emmet White, and so understanding, I signed them: I understood that the deed of trust covered only the land west of the creek and that pasture land on the place which was not in cultivation, and that it exempted from its operation all of the cultivated land upon the place which had for years been our homestead. If I had not so understood it,. I would not have signed either of said deeds of trust. I talked with my' husband about it, and obtained from him this information. I never-talked to either of the Brown Bros, about this matter, and never in my life had any communication with them in person or by writing. The deeds were prepared in town and brought out to my house by a notary public, where I signed and acknowledged them. My husband was-not present when I signed either of them. No notary public who overtook my acknowledgment to any paper ever explained to me the field notes embraced in the deed of trust and I did not read the same, as I understood they were drawn so as to embrace only the pasture land. My husband, together with myself and our five children, reside upon this-500-acre property, where we have lived for the past fifteen years as our-homestead. The land at the southeast part of the tract known as the old Pace field was where we first resided. We lived there for several years, the cultivated land being around our house there, and after purchasing the White tract we moved our residence on to that 56-acre tract, and the cultivated land on the southeast end of the tract and that part of the same Avhich mjr husband has put in cultiAration since the execution of the mortgage, so used by him for the purpose of raising products for the support of our family, as I understood, has alwa}rs been our homestead tract. If I had knoAvn.that any cultivated land Avas covered by the deeds of trust, I certainly AArould not lnrve executed either one of same. It AAras represented to me that it Avas not. I so understood it, and therefore signed the papers. I never had in my possession, nor did I eArer see the Avritten designation of homestead made by my husband. The first intimation I had that it Avas claimed that this cultivated land was covered by the mortgage was in last June, after the judgment had been ' taken in this case by the plaintiffs and the land sold under it, when the plaintiffs caused the same to be surveyed and then it Avas made to appear that the mortgage covered the greater part of the cultivated land and that which my husband had placed in cultivation since the executian of said papers. On discovering this fact, my husband immediately took steps to employ laAvyers and obtain a neAV trial of said case, Avhich v.as done.” ' Appellee Charles Pace testified: “I am the defendant in this case. I Avas born and raised in this county. I am 41 years old. I have lived on the tract of land described in plaintiff’s petition for about thirty-five years. I have knoAvn B. L. and J. Gordon BroAvn, I think it will be ten years in February next. I oavu 496 acres on the James B. Pace tract, including the 56 acres Avhich I bought from Emmet White. All told, there was about 100 acres of these two tracts of land in cultivation in 1887, when these papers were first executed. Eighty acres of the cultivated land Avas located in the southeast part or corner of the J. B. Pace tract, and 20 acres on the 56-acre tract I bought from White. My old home was in the southeast corner on the J. B. Pace tract, but I AAas then living on the 56-acre tract. I do not remember just what year I moved there. I lived where the 80 acres were in cultivation quite a number of years. The house in which I lived on the White place was there when I borrowed the money (from Brown Bros.), and there were two houses on the southeast end where the land was in cultivation. These two dwellings were the only ones suitable for renters. In 1887 I claimed the 56-acre tract and the 144 acres on the southeast side (or end) of the J. B. Pace tract as my homestead, which would embrace the farm land, the land in cultivation. The land in cultivation on my homestead was 100 acres; the uncultivated part of my homestead would be in the southeast part of the tract. I borroAved some money from B. L. and J. Gordon Brown and executed a note for it in 1887 to J. Gordon BroAvn, and a deed of trust to B. L. Brown to secure it on this land. I had negotiations with them about this matter before these papers were executed; I dealt with R. L. Brown. I think I had these negotiations with him about a week or ten days before the papers were executed; I think I talked to him three or four times about it. The circumstance that caused me to call on Brown Bros, for this loan was: Captain Staniforth, my nearest neighbor, was a personal friend of Brown Bros, and myself also, and when I contemplated borrowing this money I had a talk with Staniforth concerning Brown Bros, and asked him what sort of men they were to deal with, whether honest, upright men, or not, and he told me they were perfectly honorable gentlemen and fair in all their dealings, and that I would be perfectly safe in dealing with them, and on that account I called on R. L. Brown and told him I wanted $1500, and he told me if I could produce a clean title to this property, he would let me have the money. I produced an abstract of title. He investigated it and agreed to make the loan. He wanted a description of the land I wanted to give a deed of trust on. He sat down and wrote out the application for the loan. I signed it. I could not repeat everything in it. (Witness examines said application.) This is the paper; R. L. Brown wrote it. The application does not contain a description of the land. This is the one I signed. I would not say positively that R. L. Brown wrote this, but it seems to me he wrote it himself. They wrote out a designation of homestead for me to sign; I do not think I was present when that was done. Some time elapsed between the time of the application and the time of the designation of homestead, but the designation of homestead was signed by me there in their office. They were to lend me the money and write up a designation of homestead and deed of trust for me to sign. I had nothing to do with the writing or preparation of the designation of homestead or deed of trust; they wrote all papers. I signed it in their office, never took it out of their office, and only had it in my possession in their office long enough to affix my signature. Mr. Brown prepared the deed of trust or had it done; I was not present when it was written. I did not give him the field notes (embodied in said deed); he got them from the abstract of title I furnished him. I pointed out to him what land was to be covered by the field notes, but'only verbally. The verbal agreement with Brown Bros, was that I was to give them a deed of trust on all the land lying west of the creek and to reserve 144 acres southeast end of the tract, where the cultivated land was, as my homestead. The north line of this tract was to be of a parallel line with Beckett’s 987-vara line, and I reserved also the 56-acre tract. That agreement was understood between all parties to the transaction. When I signed this designation of homestead and the other papers R. L. Brown told me that he had drawn up the papers in accordance with mine and his agreement, and I so understood it. One thing that induced me to sign the designation of homestead was the representation of Staniforth, my friend, as to Mr. Brown’s honesty, and in signing it I relied upon Brown’s statement that the papers were drawn in accordance with the verbal agreement made with him. I can not say I examined the papers carefully, to see whether or not his statement was true. I looked at them and saw that the amount of the debt and the rate of interest was all right, and thought the balance was; I was relying solely on Brown in the matter, and with that understanding I signed the papers. The date of the designation of homestead was February 26, 1887; the date of the application for loan was January 31, 1887, and the date of the first deed of trust February 26, 1887. I can not say positively whether the designation of homestead and the deed of trust were signed at the same time or not.' These papers I suppose are right (referring to the papers above described.) “The understanding between Brown Bros, and myself when I executed that deed of trust was that the land covered by it was to be all pasture land; that was distinctly understood between Brown and myself. The way the field notes read in the deed of trust, it covers most of the farm land then in cultivation. It would be guess work to say how much of the farm land I had in cultivation at that time which would be left out by these field notes. I guess the field notes as now written in the deed of trust would cover 80 or 90 acres of the land now cultivated; they would leave very little of the land that was in cultivation when they were executed, except such part as was on the 56 acres. I did not understand when I executed the deed of trust that it covered the cultivated land on the southeast end of the tract; if I had so understood it, I would not have executed it. The cultivated land on the southeast end has been cultivated and used by myself and family for our support for the past twelve or fifteen years; it was my homestead and I relied upon the product of it to support my family. The last deed of trust executed in 1893 was just simply an extension of the first, just a renewal of the first papers; and the understanding between Brown and myself at the time I executed these last papers was that they were to and did cover the same land embraced in the first. In executing them I trusted to Mr. Brown, as at first; we had gotten along nicely, never had any trouble or squabble. When the first deed of trust was executed,. B. L. Brown represented to me that he had drawn the deed of trust in compliance with our verbal agreement. I relied on that and signed it. My wife also signed it. The terms of my verbal agreement with him were the same as the terms of the verbal agreement I spoke of before. If I had known when I executed this last deed of trust that it covered the land in cultivation on my place, I would not have executed it. B. L. Brown drew the last deed of trust or had it done. I had it in my possession, of course, long enough to sign it. I do not think I took it out of the office. I think the notary took it out for my wife to sign, to my house, but I was not there when he went out. I never took it out of the office, I signed it there. I never examined the deed records or had anyone to do it for me, from 1887, when I executed these first papers, up to 1893, the time I executed the last papers, to ascertain the land covered by my homestead or the land covered by the deed of trust; I did not think it was necessary. I never had the written designation of my homestead in my possession except as stated above. The papers were all kept by Brown Bros, in their office and they brought them into court. I never discovered the error in the description of the land covered by the homestead designation and deed of trust until about the 14th of last June, when some of my renters asked me what the surveyors were doing running lines through my farm; that was on a Saturday or Sunday that they told me this, but they told me the surveying had been going on several days; they did not tell me before, because I had not been at home. I never had occasion to look up the matter of the land embraced in these papers until that time. No question or controversy had arisen between Brown and myself on the subject until after a judgment had been rendered against me in this case. I did not file an answer in the-case. Mr. Brown told me a party had gotten a small judgment and fixed a lien against this identical land that Brown had the deed of trust on, and he told me he would have to bring suit and foreclose the deed of trust to close out that party’s (Richardson’s) claim, but that he would dispose of the land to the best advantage and any excess over what my indebtedness was I should have; and I told him that I would waive-all service and acknowledge judgment. But they brought suit and the sheriff came out and served a citation on me, and I came in and expressed surprise about it to Brown. I told him I had agreed to waive-service of process and myself and wife would acknowledge judgment;. and he said a gentleman, Mr. Spear, in the office, did not know it, had ordered issuance of citation, and that was why process was issued. And later on, before the judgment was taken, he wrote me to come in and bring my wife and acknowledge judgment, as we had agreed on. I came-in person, but did not acknowledge judgment. We had a talk about the-matter before the judgment was taken. I offered no resistance to the judgment. After the judgment was taken and the land sold under it, the sheriff came out to my place, accompanied by Mr. Lynch. I met them on the road and the sheriff asked me if I had any objections to placing-Brown in possession of the land that he ha