EiohardsoN, J.,
after stating tlie ease, delivered the opinion of the court.
The complications of this ease ai’e more appai’ent than real, and are caused by the triangulai’ity of the demands set up-by the several parties, and by the numerous pleadings in which the same matters are iterated and reitei’atecl. One of the most difficult questions in it, that is, the construction of the deeds of conveyance from Heiskell to Preston, and from Preston to Stuart & Palmer, on the first appeal passed into res judicata; as this coui’t decided that those deeds conveyed the entire interests (except the Hunter interest,) of Heiskell in the King’s Salt Woi’ks estate; that those interests embraced the entire shares of the three Claibornes in said estate; that they were ll-540ths of the whole estate; that when those deeds were made, the parties supposed the Claiborne interests to be only 6-540ths, instead of ll-540ths, and by mutual mistake had computed the value thereof accordingly; that Heiskell was entitled to compensation for the 5-540ths which had been conveyed. but were overlooked in the computation. And we are of the opinion that it is equally dear that the mistake extended and entered into the computation of the purchase money, the sale and the conveyance of Preston to Stuart & Palmer, and that- Preston also is entitled to a correction of the mistake and to compensation for the 5-540tlis which were overlooked in the computation of the purchase money payable to him by his ven-dees, Stuart & Palmer. The two deeds were executed within three months of each other. The language describing the interests conveyed, is substantially the same in both, — the Claiborne interests being in both described “as 2-540tbs each.” Such mistake is averred in the bill, and also in the cross-bill. The averment is not positively denied by the respondents, Stxx-art & Palmer, but is only ai’gumentatively contested. They contend, that if there was eiror in the deed to them, “it was a [801]*801mere error of the grantor’s own in the calculations,” and that such error “is a very different thing from such a mistake as a court of equity will correct ” We are of opinion that this contention is not tenable. It was a mistake of fact, a mutual mistake of grantor and of grantee, and whether it was a mistake as to the factors entering into the calculation, or a mistake as to the mode of the calculation, or in the process and result thereof, it matters not. In any event, it was a mutual mistake of fact, not of law, and such a mistake as it is one of the original grounds of equity jurisdiction so to amend as to do justice to all concerned, and to place them as nearly as practicable in statu quo. Adams’ Equity [191]; Pomeroy’s Eq. § 188; Stor'y’s Eq. Jur. § 155; Hoback v. Kilgore, 26 Gratt. 442; Mauzy v. Sellers, Id. 641; Hunt v. Rousmaniere’s adm’rs, 8 Wheat. 174. In Simpson v. Vaughan, 2 Atk. 38, Lord Hardwicke said, a “mistake is a head of equity on which a court always relieves.” See also Snell v. Ins. Co. 98 U. S. 89.
Then, just as Preston under Heiskell’s deed, received more than he bargained and paid for, so Stuart & Palmer under Preston’s deed, received more than they bargained and paid for. This court, on the first appeal, decided that Heiskell’s trustee was entitled to compensation for that excess. And on the same principle, it is a facile and .an inevitable conclusion that, the facts being identical, Preston, or his assignee, is also entitled to compensation for such excess. In the absence of proof to the contrary, the presumption is that such compensation should be in the same proportion that the 6-540ths bargained and paid for, bears to the 5-540ths not bargained and paid for, but conveyed under the mutual mistake. When that decision was made, it was undetermined whether or not, upon a fair settlement of accounts, Iieiskell had been paid for the whole corrected values of the Claiborne, interests, as Preston and Massie contended he had been. Nor has that important question of fact yet been determined. And it is yet undetermined also, how the balance stands between Preston and Stuart [802]*802& Palmer. But tbe parties all desire that the principles which underlie this case shall all be settled before they incur the labor and expense of an account, and we proceed to settle the questions which so far have arisen.
Preston and Massie, however, contend that no lien being retained in the deed of July, 1862, the claim of Heiskell’s trustee for the additional compensation, is only a personal demand against Preston. This is a delusion. The relief is given on the ground of the clearly established mutual mistake in the deeds. To the extent necessary to complete relief (for equity does nothing by halves), the deeds must be re-formed, so as to vest the title to the said excess of 5-540ths in Ileiskell’s trustee, should it be ascertained, upon an account taken, that he has never been paid therefor.
This conclusion is, beyond all peradventure, correct, unless Stuart & Palmer are purchasers of that excess for value, without notice. Such purchasers they certainly are not, unless upon the taking of the proper accounts it shall appear that they have paid the price of said excess. They have, it is true, a conveyance of the 5-540ths. But the mutual mistake entered into the deed of Preston to them, as well as into that of Ileiskell to Preston, and that circumstance entitled Preston, and all claiming under him, to a re-formation of these deeds, in order to do complete justice. Such re-formation having been so made, or considered as made, how can they claim to be such purchasers, when they not only have no conveyance for the excess, but are entitled to none, at least until they shall show that they have paid for the entire Claiborne interests? Lamar v. Hale, 79 Va., and authorities there cited.
Nor does Massie occupy higher ground than his assignor, Preston. lie took an assignment of Preston’s claim against Stuart & Palmer, for value, it is true, but with full notice of the mistake, and of Ileiskell’s equitable rights, and he must take the burden with the benefit, the maxim being qui sentit commo-dam sentiré debet et onus.
[803]*803The same reasons apply as well to the James King interest in the King’s Salt Works estate, as to the Claiborne interests therein. But it is contended, that whilst Heiskell did convey the Claiborne and the Trigg and Branch interests to Preston, with general warranty, and might be liable to Preston for all sums paid bj’ him to disencumber them, he conveyed the James King interest to him with only special warranty, and hence would not be liable to compensate him for the sums paid by him to disencumber that interest.
After careful consideration we are of opinion that the distinction usually existing between general and special warranty has no application to this case. The relief afforded here is not on the ground of compensation for a breach of warranty, whether general or special. It is the re-formation of an instrument which, being executed under mutual mistake of the parties, as it stood, worked injustice. Heiskell’s trustee asked no relief upon the deed and its provisions. He asked relief only on the ground of the mistake. lie asks justice, He must do justice. That is a fundamental principle of equity. Heiskell conveyed 11-540 of King’s Salt Works estate to Preston, when he supposed he was conveying only 6-140. He came into equity to have the mistake corrected, the deed re-formed, and for compensation for the excess.
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EiohardsoN, J.,
after stating tlie ease, delivered the opinion of the court.
The complications of this ease ai’e more appai’ent than real, and are caused by the triangulai’ity of the demands set up-by the several parties, and by the numerous pleadings in which the same matters are iterated and reitei’atecl. One of the most difficult questions in it, that is, the construction of the deeds of conveyance from Heiskell to Preston, and from Preston to Stuart & Palmer, on the first appeal passed into res judicata; as this coui’t decided that those deeds conveyed the entire interests (except the Hunter interest,) of Heiskell in the King’s Salt Woi’ks estate; that those interests embraced the entire shares of the three Claibornes in said estate; that they were ll-540ths of the whole estate; that when those deeds were made, the parties supposed the Claiborne interests to be only 6-540ths, instead of ll-540ths, and by mutual mistake had computed the value thereof accordingly; that Heiskell was entitled to compensation for the 5-540ths which had been conveyed. but were overlooked in the computation. And we are of the opinion that it is equally dear that the mistake extended and entered into the computation of the purchase money, the sale and the conveyance of Preston to Stuart & Palmer, and that- Preston also is entitled to a correction of the mistake and to compensation for the 5-540tlis which were overlooked in the computation of the purchase money payable to him by his ven-dees, Stuart & Palmer. The two deeds were executed within three months of each other. The language describing the interests conveyed, is substantially the same in both, — the Claiborne interests being in both described “as 2-540tbs each.” Such mistake is averred in the bill, and also in the cross-bill. The averment is not positively denied by the respondents, Stxx-art & Palmer, but is only ai’gumentatively contested. They contend, that if there was eiror in the deed to them, “it was a [801]*801mere error of the grantor’s own in the calculations,” and that such error “is a very different thing from such a mistake as a court of equity will correct ” We are of opinion that this contention is not tenable. It was a mistake of fact, a mutual mistake of grantor and of grantee, and whether it was a mistake as to the factors entering into the calculation, or a mistake as to the mode of the calculation, or in the process and result thereof, it matters not. In any event, it was a mutual mistake of fact, not of law, and such a mistake as it is one of the original grounds of equity jurisdiction so to amend as to do justice to all concerned, and to place them as nearly as practicable in statu quo. Adams’ Equity [191]; Pomeroy’s Eq. § 188; Stor'y’s Eq. Jur. § 155; Hoback v. Kilgore, 26 Gratt. 442; Mauzy v. Sellers, Id. 641; Hunt v. Rousmaniere’s adm’rs, 8 Wheat. 174. In Simpson v. Vaughan, 2 Atk. 38, Lord Hardwicke said, a “mistake is a head of equity on which a court always relieves.” See also Snell v. Ins. Co. 98 U. S. 89.
Then, just as Preston under Heiskell’s deed, received more than he bargained and paid for, so Stuart & Palmer under Preston’s deed, received more than they bargained and paid for. This court, on the first appeal, decided that Heiskell’s trustee was entitled to compensation for that excess. And on the same principle, it is a facile and .an inevitable conclusion that, the facts being identical, Preston, or his assignee, is also entitled to compensation for such excess. In the absence of proof to the contrary, the presumption is that such compensation should be in the same proportion that the 6-540ths bargained and paid for, bears to the 5-540ths not bargained and paid for, but conveyed under the mutual mistake. When that decision was made, it was undetermined whether or not, upon a fair settlement of accounts, Iieiskell had been paid for the whole corrected values of the Claiborne, interests, as Preston and Massie contended he had been. Nor has that important question of fact yet been determined. And it is yet undetermined also, how the balance stands between Preston and Stuart [802]*802& Palmer. But tbe parties all desire that the principles which underlie this case shall all be settled before they incur the labor and expense of an account, and we proceed to settle the questions which so far have arisen.
Preston and Massie, however, contend that no lien being retained in the deed of July, 1862, the claim of Heiskell’s trustee for the additional compensation, is only a personal demand against Preston. This is a delusion. The relief is given on the ground of the clearly established mutual mistake in the deeds. To the extent necessary to complete relief (for equity does nothing by halves), the deeds must be re-formed, so as to vest the title to the said excess of 5-540ths in Ileiskell’s trustee, should it be ascertained, upon an account taken, that he has never been paid therefor.
This conclusion is, beyond all peradventure, correct, unless Stuart & Palmer are purchasers of that excess for value, without notice. Such purchasers they certainly are not, unless upon the taking of the proper accounts it shall appear that they have paid the price of said excess. They have, it is true, a conveyance of the 5-540ths. But the mutual mistake entered into the deed of Preston to them, as well as into that of Ileiskell to Preston, and that circumstance entitled Preston, and all claiming under him, to a re-formation of these deeds, in order to do complete justice. Such re-formation having been so made, or considered as made, how can they claim to be such purchasers, when they not only have no conveyance for the excess, but are entitled to none, at least until they shall show that they have paid for the entire Claiborne interests? Lamar v. Hale, 79 Va., and authorities there cited.
Nor does Massie occupy higher ground than his assignor, Preston. lie took an assignment of Preston’s claim against Stuart & Palmer, for value, it is true, but with full notice of the mistake, and of Ileiskell’s equitable rights, and he must take the burden with the benefit, the maxim being qui sentit commo-dam sentiré debet et onus.
[803]*803The same reasons apply as well to the James King interest in the King’s Salt Works estate, as to the Claiborne interests therein. But it is contended, that whilst Heiskell did convey the Claiborne and the Trigg and Branch interests to Preston, with general warranty, and might be liable to Preston for all sums paid bj’ him to disencumber them, he conveyed the James King interest to him with only special warranty, and hence would not be liable to compensate him for the sums paid by him to disencumber that interest.
After careful consideration we are of opinion that the distinction usually existing between general and special warranty has no application to this case. The relief afforded here is not on the ground of compensation for a breach of warranty, whether general or special. It is the re-formation of an instrument which, being executed under mutual mistake of the parties, as it stood, worked injustice. Heiskell’s trustee asked no relief upon the deed and its provisions. He asked relief only on the ground of the mistake. lie asks justice, He must do justice. That is a fundamental principle of equity. Heiskell conveyed 11-540 of King’s Salt Works estate to Preston, when he supposed he was conveying only 6-140. He came into equity to have the mistake corrected, the deed re-formed, and for compensation for the excess. Preston has paid out money to remove incumbrances on the interests conveyed to him by Heis-kell, and asks for reimbursement. To state the case is to demonstrate the obvious conclusion, that the maxim, “He that seeks equity must himself do equity,” is justly applicable, and must govern the case in this respect. This principle is not confined to any particular kind of equitable rights and remedies, but pervades the entire field of equitable jurisdiction, so far as it is concerned with the administration of equitable remedies. Pom. Eq. Jur. § 388; Jones v. Roberts, 6 Call, 187; Lipscomb's adm’r v. Miller’s exo’rs, 1 H. & M. 204.
Stuart & Palmer, and also the Holston Salt and Plaster Company, plead the statute of limitations, not only against the [804]*804claim set tip by Preston, but also against tbat of Heiskell’s trustee. It is manifest tbat the statute of limitations has no appropriate application to the case here made for relief on the ground of mistake, which has been established by such clear and strong proof as leaves no room for reasonable doubt. "Were this a mere demand for unpaid purchase money for land conveyed without the retention of a lien, of course such plea would apply. But cases of fraud, trust and mistake are not within the statute of limitations. 1 Wash. 145; 4 Munf. 222.
At all events, in cases of mistake, as in cases of fraud, the statute does not begin to run until the discovery of the mistake. 1 Story’s Eq. Jur. section 1521 a; Rowe v. Bentley, 29 Gratt. 760-1; 1 Danl. Chy. Pr. 645; 1 Barton’s Chy. Pr. 98; Kerr on F. and M. 436.
The claim here which these respondents sought to meet by this plea, is a claim to resort to the land for the payment of the purchase money, and such a claim, under the circumstances, cannot be affected by any lapse of time short of a period sufficient to raise the presumption of payment. Hanna v. Wilson, 3 Gratt. 232; Coles v. Withers, 33 Gratt. 186. No such period has elapsed here; because, to say nothing of the discovery of the mistake as late as 1875, and if it be admitted for the sake of the argument, that the cause of action arose in October, 1862, the period of twenty years had not elapsed when this suit was brought in 1878; and when the war and stay-law period is eliminated, there will remain only a little more than nine years. Coles v. Ballard, 78 Va. 139.
The existence of the deeds conv.eying the title and retaining no lien, cannot avail to reduce the period of limitation to five years, because the allegation and proof of 'the mistake requires the abrogation of those conveyances, at least quoad the unpaid purchase money for the excess over the 6-540 mentioned therein. Those conveyances must be so connected as to do complete and effectual justice between the parties; the principle upon which the court acts in making corrections of mistakes, being that [805]*805the parties shall be placed in the same situation as they would have been if the mistake had not been committed. Kerr on F. and M. 20.
The holders of the legal title will be considered in equity as trustees for the security of the payment of this purchase money.
It is also contended that Heiskell’s trustee, and Heiskell himself before the trust-deed of 1869, and Preston have been guilty of laches in the prosecution of their respective suits, whereby they are debarred from relief in a court of equity. The answer to this has already been given in another view of the case. It is, that the original and the cross-bill both alleged that the mistake was discovered for the first time by the plaintiffs in 1875; and that the subsequent delay in bringing the suit for relief on account of the mistake, is satisfactorily explained. The allegation of recent discovery was not denied in the answers, and was only attempted to be met by arguments.
It is well settled that laches cannot be predicated of those who are ignorant of their rights. Rowe v. Bentley, 29 Gratt. 763. Such defence is, in equity, only permitted to defeat an acknowledged right on the ground of it affording evidence that the right has been abandoned. Nelson v. Carrington, 4 Munf. 332-343.
In conclusion, we are of opinion that there is no error in the decree complained of, except wherein it holds that the interest of James King in the King’s Salt Works estate, having been sold to Preston with special warranty only, no allowances should be made to Preston for any sums of money expended by him in discharging incumbrances thereon. For this error the decree must be reversed, with costs to the appellant, and the cause remanded for further proceedings in the court below, in conformity with the principles of this opinion.
Decree affirmed in part, and reversed in part.