1. An option to purchase land, reciting that the payment therein contemplated is to be "fifteen dollars per acre," the description therein being: "All of land lots numbers two hundred and ten (210), two hundred and eleven (211), and one hundred and sixty-one (161) acres of land lot number two hundred and thirty-nine (239), in the sixteenth (16) land district of formerly Worth, now Turner County, Georgia, containing in the aggregate five hundred and sixty-six (566) acres, more or less. Also all of land lots numbers two hundred and six (206) and two hundred and seven (207), containing in the aggregate four hundred and five (405) acres, more or less, in the sixteenth land district of Worth County, Georgia," followed immediately by the recital that "The terms and conditions for the execution of said bond for titles are as follows: The said Berry Rigdon is to pay us one fourth (1/4th) of a consideration of fifteen ($15.00) dollars per acre for the aggregate acreage of the above-described land," and the instrument containing no other clauses or words qualifying what is quoted above, contemplates a sale by the acre, and not by the tract. Fowler v. Wood, 138 Ga. 219 ( 75 S.E. 104).

2. A deed merely reciting, that, in consideration of the sum of fourteen thousand five hundred and sixty-five dollars in hand paid, the grantor conveys "all that tract or parcel of land lying and being in the sixteenth land district of Worth County, Georgia, as follows: land lot No. 206, and land lot No. 207, each containing 202-1/2 acres, more or less; also lots No. 210 and 211, each containing 202-1/2 acres, more or less, and land lot No. 239, containing 161 acres, more or less, these three last lots now being in the sixteenth district of Turner County, Georgia, formerly of Worth County, Georgia, containing in the aggregate 971 acres. This deed conveys only that portion of lot number 239 that is in Turner County and in the 16th land district, and the same being 161 acres, more or less. Subject to deed to secure debt in favor of John A. Barfield to receive an indebtedness of $8,000.00," followed by a covenant of warranty covering "the said bargained premises," is a sale by the tract, and not by the acre. Compare Kendall v. Wells, 126 Ga. 343 ( 55 S.E. 41); Goette v. Sutton, 128 Ga. 179 ( 57 S.E. 308).

3. The option was merged in the deed. When the terms of the two vary, the deed must be looked to alone in determining the rights of the parties. Augusta Land Co. v. Augusta Railway Electric Co., 140 Ga. 519 522 ( 79 S.E. 138).

4. A complainant who, on October 8, 1940, filed a suit to recover by reason of an alleged shortage in acreage under a sale of land, and not entitled to recover under his original allegations, and who, on March 23, 1941, filed an amendment alleging that the deed made pursuant to said sale on January 5, 1929, was the result of a mutual mistake of fact, and a mutual mistake of law, and seeking so to reform the same as to make it a sale by the acre and not by the tract, the amendment offering no reason why reformation was not earlier sought, except that "recently and within the last 90 days it has been discovered by your petitioner that said tract of land contained only 826.83 acres of land, the same showing a shortage of 108.17 acres," it being alleged that said deed should have been so drawn as to show that petitioner was acquiring title to the land and paying therefor at the rate of $15 per acre, but not averring when he first discovered that said deed did not contain any such provision, is not entitled to recover as against a demurrer invoking the doctrine of laches.

5. In so far as it sought to recover damages by reason of the shortage in acreage amounting to 108.17 acres, the deed purporting to convey in the aggregate 971 acres consisting of certain numbered lots, each described as containing a specified number of acres, "more or less," the deed being dated January 5, 1929, and the suit being filed October 8, 1940, the amended petition was subject to demurrer on the ground that the action was barred by the statute of limitations, notwithstanding an allegation that "recently and within 90 days it has been discovered by your petitioner that said tract of land contained only 862.83 acres of land, the same showing a shortage of 108.17 acres."

No. 14129. MAY 27, 1942.

On October 8, 1940, Berry Rigdon brought suit against John R. Barfield and D. W. Maconson, alleging that the defendants were indebted to him $1622.55, besides interest from January 5, 1929, at the rate of eight per cent. per annum, the alleged indebtedness being claimed by reason of the fact that on January 5, 1929, the defendants sold to the plaintiff and conveyed to him by deed a tract of land which they represented to him as containing 971 acres, and that same was sold to him on the basis of $15 per acre, the total sale price being $14,565. He alleged that it was only within the ninety days next preceding the bringing of the petition that he discovered the shortage to be 108 and a fraction acres, and that because of this shortage, at the contract price of $15 per acre, the defendants were due to him the amount sued for. The defendants demurred on the grounds that the petition set forth no cause of action, and that no copy of the alleged deed was attached to the petition.

On January 21, 1941, the plaintiff filed an amendment to his petition, attaching a copy of the alleged option signed by the defendants on December 8, 1928, and a copy of the deed executed January 5, 1929. The option contained the following stipulations:

"Received of Berry Rigdon the sum of one hundred ($100.00) dollars, and in consideration we hereby agree and bind ourselves that if the said Berry Rigdon shall at any time within the dates from December 8, 1928, until and including January 5, 1929, pay to us the sum of one fourth of a consideration of fifteen ($15.00) dollars per acre, the amount of this option to be included in said one fourth payment, then upon the payment of said amount we bind ourselves, our heirs and assigns, to execute to the said Berry Rigdon, or his assigns, good and sufficient bond for titles in and to the following described lands: [describing the lands here involved.] The said Berry Rigdon is to pay us one fourth of a consideration of fifteen dollars per acre for the aggregate acreage of the above described land, said one fourth payment to include the one hundred dollars paid for this option, at any time, on or before January 5, 1929. Upon the payment of said one fourth cash, including the amount of this option, we agree to issue said bond for titles, conditioned that the said Berry Rigdon shall pay one fourth of the balance of said purchase-price on January 5, 1930, another fourth of said purchase price on January 5, 1931, and the balance on January 5, 1932. Said deferred payments are to be evidenced by promissory notes to be executed by said Berry Rigdon in our favor and stipulating eight per cent. interest from date until paid."

The deed referred to was dated January 5, 1929, and recited a consideration of $14,565. After specifying the lots and parts of lots conveyed as containing each so many acres "more or less," there followed the recital, "containing in the aggregate 971 acres." It contained no mention of the price per acre.

The defendants demurred to the petition thus amended, on the following grounds: that it set forth no cause of action entitling petitioner to recover; that the deed showed the lands were purchased as a tract, and not by the acre; that there was no allegation of fraud on the part of the defendants; that any and all prior agreements and understandings had between the parties were merged in the deed executed; that the cause of action complained of occurred more than eleven years before the filing of the suit, and was barred by the statute of limitation.

The plaintiff further amended his petition by alleging that after the purchase and signing of the option by the defendants he informed them that he was willing to make the purchase of the lands on the terms of $15 per acre; that the parties met on January 5, 1929, and closed the trade; and that he paid on said date one fourth of the total price, and gave his promissory notes payable in installments of one fourth on the dates stipulated in the option. And in lieu of so much of the petition as alleged that he sought recovery at the rate of $15 per acre for the 108 and a fraction acres alleged to be short, he alleged that such shortage was so great, when taken together with the facts and circumstances alleged in the petition and the amendments, as to constitute and actual fraud on the part of the defendants; and that by reason thereof the defendants are indebted to him in the sum sued for. He prayed that the deed executed be so amended as to speak and show the real agreement between the parties, and to convey the land by the acre and not by the tract. The defendants renewed their demurrer on the same grounds, and because no diligence was shown on the part of plaintiff in discovering the alleged mutual mistake, and he would not be permitted to take advantage of his own laches; and that the allegation of actual fraud by the defendants should be stricken, because (a) neither standing alone nor taken in connection with the remaining paragraphs of said amendment does the same present any reason that would entitle plaintiff to the relief sought, and (b) because said allegation does not present a case of actual fraud, but only a case of mutual mistake; and no diligence on plaintiff's part in discovering the mistake being shown, he is not relieved from the bar of the statute.

The court sustained the demurrers and dismissed the action. The plaintiff excepted.

GRICE, Justice.

1. On application of the ruling announced in the first three headnotes, the petition as originally drawn presented no cause of action. Did the amendment setting up that the actual date of the deed was January 5, 1929, and praying for its reformation, save it? The petition as amended is met by a demurrer which invokes the doctrine of laches, and insists that by reason thereof the complainant is not entitled to the relief prayed for. Eleven years, nine months, and three days elapsed between the time the deed is alleged to have been actually executed and delivered and the date of the filing of the suit. Who, if any one, was in possession of the land does not appear. While the amendment alleges that "recently, within the last ninety days, it has been discovered by your petitioner that said tract of land contained only 862.83 acres of land, the same showing a shortage of 108.17 acres," this has no reference to the time when he discovered that the deed which he seeks to reform contained a mutual mistake. As to when that was discovered the record is silent. The petition as amended does not negative the idea that the complainant knew of the alleged mistake from its very date. No excuse is given for the plaintiff's long delay. The petition charges the defendants with no conduct the effect of which was to debar or deter the plaintiff from sooner bringing suit. It was incumbent on him, in order to repel the presumption of unreasonable delay, to allege in his petition what impediments, if any, there were to an earlier appeal to the courts for redress. In Aken v. Bullard, 134 Ga. 665 ( 68 S.E. 482), there was a delay of a little more than nine years. This court held that the laches of the plaintiff in that case was so palpable from the petition that its dismissal on demurrer was proper. See DeLaigle v. Denham, 65 Ga. 482, 491, where a wait for a little less than ten years was held sufficient to close the door of equity to a complainant. Also James v. Hill, 140 Ga. 739 ( 79 S.E. 782), and Spence v. Queen, 139 Ga. 587 ( 77 S.E. 820). The instant case is distinguished from Kelly v. Hamilton, 135 Ga. 505 ( 69 S.E. 724), where this court held that under the peculiar facts alleged, an equitable bar would not attach on account of laches, although thirty years intervened between the date of the execution of the deed and discovery of the mistake. In that case the complainants promptly after the discovery of the mistake filed the suit to reform the deed.

2. We need not inquire whether it could be declared as a matter of law that the alleged shortage in acreage was not so gross as to justify the suspicion of wilful deception, or mistake, or fraud, so as to give the complainant a right to sue for the value of the difference under the Code, § 29-201. On this subject see Estes v. Odom, 91 Ga. 600 ( 18 S.E. 355); Perkins Manufacturing Co. v. Williams, 98 Ga. 388 ( 25 S.E. 556).

Let us first consider whether the bar of the statute was tolled by the averment that "recently within the last 90 days it has been discovered by your petitioner that said tract of land contained only 862.83 acres of land, the same showing a shortage of 108.17 acres." "If the defendant, or those under whom he claims, shall have been guilty of a fraud by which the plaintiff shall have been debarred or deterred from his action, the period of limitation shall run only from the time of the discovery of the fraud." Code, § 3-807. This contains no broad statement that the period of limitation shall run only from the discovery of the fraud, but that it shall do so if the defendant shall have been guilty of a fraud by which the plaintiff shall have been debarred or deterred from his action. Printup v. Alexander, 69 Ga. 553; Anderson v. Foster, 112 Ga. 270 ( 37 S.E. 426). No fiduciary relationship existed between the parties. No conduct of the grantor is alleged that lulled the grantee to sleep. No reason is asserted why the fraud was not earlier known to the grantee, or why he could not have promptly ascertained the facts. So far as appears, he made no effort during eleven years and more to find out how much land was actually included in the deed. Under these circumstances, the bar of the statute is not tolled merely because he was in ignorance of the facts until about ninety days before the suit was brought. A person can not thus sit quietly by for a length of time exceeding that named in the statute of limitations, and avoid its operation and save his cause of action by the mere allegation that he made the discovery only within the last ninety days. The law exacts from him a reason for his delay, that it may judge of its soundness. Silence on this subject is fatal, when the statute is pleaded as here. Marler v. Simmons, 81 Ga. 611 ( 8 S.E. 190); Crawford v. Crawford, 134 Ga. 114, 121 ( 67 S.E. 673, 28 L.R.A. (N.S.) 353, 19 Ann. Cas. 932). The conclusion is that the bar of the statute is unaffected by complaint's reference to time of the discovery of the shortage.

That part of the plaintiff's suit which seeks damages sounds in tort. It is for fraud and deceit. The act of 1767 (Cobb's Dig. 562) made no reference to injuries either to the person or to property. It created a bar of four years "for actions upon the case," and this was a class of actions in which at common-law relief might be had for damages resulting from fraud and deceit. Bishop's Non-Contract Law. § 343; Crawford v. Crawford, supra. The chapter in our present Code on limitation of actions for torts is numbered 3-10. It is declared that all actions for damages to realty shall be brought within four years after the right of action accrues (§ 3-1001); for injuries to personalty in four years (§ 3-1002); and that suits for the recovery of personal property, or for damage or destruction of the same, shall be brought within a like time (§ 3-1003). The next section deals with injuries to the person, and the final section in the chapter is on the subject of disabilities and exceptions. It is possible that the General Assembly intended to fix no limitation for the bringing of actions of the kind now being considered; but the more probable view is that it was the legislative intent to have every action of tort, no matter what its character, covered by what is contained in the chapter. Crawford v. Crawford, supra, was a case where the suit was for damages arising from fraud and deceit whereby one was induced to accept real property in settlement of a debt much greater in amount than the value of the property. It was held that it was an injury done to property, and not to the person, and that the statute of limitations in reference to injuries to property applied. In the opinion, immediately after discussing the act of 1767, noted above, it was said: "That act was supplanted by the act of the General Assembly approved March 6, 1856 (Acts 1855-6, p. 233), from which latter act the limitations now embodied in the Code were taken. The act of 1856 made no reference to actions upon the case, but, in prescribing therein certain limitations of actions, made the classifications of `Suits for damages to real estate;' `Suits for injuries to personal property,' and `Suits for injuries done to the person,' prescribing a bar of four years for the two former, and of two years for the last named. There is nothing in this act to indicate any intention on the part of the legislature to change the period of limitation of four years which previously applied to actions for fraud and deceit (as being actions upon the case) to one of two years, unless it could be said that such actions could not be classed otherwise than as `injuries done to the person.'" The conclusion of the court as to the statute of limitations applied to the case then before it was summarized at the end of the second division of the opinion as follows: "We conclude that the plaintiff in the present case had a right to bring his action within four years from the time the statute commences to run against his alleged right of action; as the damages sued for resulted from an injury to the personal property of the plaintiff, and not from an injury to his person." In view of the foregoing, it is ruled that the plaintiff's action for fraud in the instant case, not having been brought within four years, was barred. It was not erroneous to sustain the demurrer and to dismiss the action.

Judgment affirmed. All the Justices concur.

BELL and DUCKWORTH, JJ., concur in the judgment.