concurring.
I do not believe there is a fact issue here. To me the controlling question is whether an action to reform and correct a deed is barred by the four year statute of limitation.
The mutual mistake is that the rear portion of a city lot (upon which the developer of the addition had his work sheds) was not excluded from the description of the lot at the time the developer sold the front portion. This suit was not filed until more than four years after the discovery of the mistake.
The Court of Civil Appeals recognized this as an equitable cause of action to reform but held the four year statute of limitation1 not applicable because the grantee “acquiesced in *549the claim” and the grantor had “at all times remained in possession” and used the tract. Grantor seeks to sustain this ruling also on the ground that the superior equitable title remained in him and that he is the beneficiary of a constructive trust.
If the grantor parted with title under a mutual mistake, then all that he had left was a cause of action to reform. In the absence of reformation, he would have no title of any kind because as long as the deed stood unreformed it operated to pass all of his title. Hamilton v. Green, 166 S.W. 97. To hold otherwise would be to raise various equitable rights to the dignity of unwritten land titles contrary to the policy of our law.
Does the wording of Art. 5529 — “Every action other than for the recovery of real estate” — bring forward the old distinction between real and personal actions?
Formerly when equity and law were administered in separate courts a plaintiff in this situation could not file a possenssionary action at law until he had good title. Jones v. Johnson, 18 How (59 U. S.) 150, 15 L. Ed. 320; 76 C.J.S., Reformation of Instruments, §7, p. 332 and §67, p. 405. He would first have to file a separate suit in equity to reform the deed and in this would have had to meet and overcome a plea of laches. 76 C.J.S., Reformation of Instruments, §69c, p. 418. Although we have long since combined law and equity in one court, we have for many purposes adhered with some rigidity to distinctions between what were formerly legal and equitable actions,2 and on that basis it is settled law in Texas that a suit to reform and correct a deed for mistake is not “for the recovery of real estate,” but personal. McCampbell v. Durst, 15 Texas Civ. App. 522, 40 S.W. 315, 955; Id. 91 Texas 147, 41 S.W. 470; Cleveland State Bank v. Gardner, Texas Com. App., 286 S.W. 173; Pure Oil Company v. Ross, 131 Texas 41, 111 S.W. 2d 1076.
*550■ ■Should continued possession by the grantor change such a suit. to • one “for the recovery of real estate” ? Under the old divided jurisdiction, possession or lack of it would have made no difference in the right to bring a suit in equity to correct the deed. Of course, a resort to law to obtain possession would have been unnecessary under the facts of this case since grantor already had that. I see no reason under a blended system why continued possession by the grantor after discovery of the mistake should bar the operation of the statute. The policy of the law is that mistakes be corrected with reasonable promptness while the facts are fresh and the original parties to the transaction still available.3 Four years is not an unreasonable period in which to take action to correct a known mistake. A diligent grantor should immediately request a correction deed. If this be refused, he knows that he must either be put to the expense of a suit or forget it. Acquiescence upon the part of the grantee is not a factor since he has neither burden nor incentive to correct the mistake.
The grantor here relies upon some of the language in Strong v. Garrett, 148 Texas 265, 224 S.W. 2d 471. In that case the grantor put the grantee in possession of the lot both had agreed upon but the deed contained the wrong tract number. Where the grantee suffering by the mistake is in possession, knowledge of the mistake will not be presumed but must be brought to his attention by adverse claim or disturbance of possession. In the Strong case the adverse claim was asserted within four years next preceding the filing of the suit. In the case at bar suit was not filed until more than four years after discovery of the mistake and assertion of adverse claim.
This rests upon the need for certainty in land titles. The undesirable situation arising from long continued failure to correct known mistakes has been the cause of the constant effort of the law to avoid long-standing unwritten land claims. Because this has proved to be a wise policy, we should adhere to the traditional classification of a suit to reform a deed for mutual mistake as being personal and therefore barred by Art. 5529.
Opinion delivered June 23, 1954.
. Art. 5529, R.C.S. 1925. “Every action other than for the recovery of real estate, for which no limitation is otherwise prescribed, shall be brought within four years next after the right to bring the same shall have accrued and not afterward.”
. Hearst’s Heirs v. Kuykendall’s Heirs, 16 Texas 327; Hemphill:
“* * * An action for the recovery of lands has a well known and definite signification, and means an action of ejectment, trespass to try title, or a suit to recover the land itself; whereas the object of a suit by vendee, for specific performance, is not the recovery of the land itself, but to enforce a contract for its sale, and the delivery of a deed or title for the land. The vendee may be, and very often is, in possession of the land, and that by an equitable title superior in every respect to the shadow of legal title remaining with the vendor, but for convenience and security he may desire a conveyance in form, in accordance with the contract; and a proceeding for this purpose could not, in the ordinary ard legal acceptation of the terms, be described as a suit for the recovery of the land. To secure title deeds to land is one thing; to recover the land itself is another, and as the former is generally and mainly the object of a suit by vendee for the specific performance of a contract for the sale of land, it is apparent that the action does not come within the scope of a provision, the operation of which is restricted to suits for the recovery of the land.”
. McCampbell v. Durst, 40 S.W. 315, 322, Williams:
* **• To hold that this four years’ statute of limitations does not apply would Be to hold that there is no limitation to this kind of a suit, and that equities such as this: are only barred by adverse possession, or else to say that the courts are still to have resort in such cases only to the doctrine of stale demand. - * * *” - ■