Wheeler, C. J.
It appears to be well settled that, in the sale of land, where there has been misrepresentation as to the quantity, though innocently made, and the parties were under a mistake as to the quantity, and the deficiency is so great as to [350]*350have been material, in the object of the purchase, affecting the essence of the contract, equity will grant relief. (1 Sugden on Vendors, ch. 7, § 3; Mitchell v. Zimmerman, 4 Texas Rep. 75; 4 Kent, Com. 457; 1 Story, Eq. § 141.) And this, says Judge Story, would be so, although the land was described as so many acres, “more or less.” It would certainly be so, where the land is sold by the acre, and the statement of the quantity of acres in the deed is not mere matter of description, but is of the essence of the contract.
The plaintiff alleges, that he bought and paid for the land, by the acre; that there was misrepresentation, and a mistake as to the quantity of land conveyed; and that it fell short 115 acres, of the quantity the tract was supposed to contain, and the deed purported to convey. A deficiency so great, in a sale by the acre, of a tract of 500 acres, can scarcely be supposed to have been within the risk which the parties meant to incur, or to have been intended to be embraced by the words “ more or less,” employed in the deed. There can be little doubt, that the allegations of the petition show a cause of action; and the question is, whether it was barred by the statute of limitations, at the time of bringing the suit.
It has been adjudged, by very high authority, upon full consideration, that an action at law, for money had and received, could not be maintained in a case like the present, to recover back the money paid for the number of acres alleged to be deficient. The purchaser must resort to a court of equity to obtain relief on the ground of mistake. (Homes v. Barker, 3 Johns. Rep. 506, 510.) If the present suit be regarded as an action at law, for money had and received, or as an action to recover back, money paid by mistake, it must be held that the cause of action accrued immediately upon the payment of the money; and consequently, that the right of action was barred. Thus, where a personal representative, having found a mortgage deed among the testator’s papers, assigned it, and it turned out to be a forgery, it was held, that the assignee could not recover back from the assignor his money; the assignment not having taken place [351]*351within the period of the statute of limitations, (then six years,) though the discovery that the deed was a forgery, was made within that time, and it not appearing that the assignor knew it to be a forgery. (Bree v. Holbech, Doug. Rep. 654; and see United States Bank v. Daniel, 12 Pet. 32; Angell on Limitations, § 116.)
But the present is not a case in which an action at law, to recover back money paid by mistake, would be the proper remedy, in those countries where the jurisdiction of law and equity are distinct. The ground of relief is the mistake, which having been carried into the deed, the remedy is in equity. In the case first above cited, (3 Johns Rep. 510,) Kent, C. J., said: “I confess that I have struggled hard, and with the strongest inclination, to see if the action for money had and received, would not help the plaintiff in this case; but I cannot surmount the impediment of the deed, which the plaintiff has accepted from the defendant, and which contains a specific consideration, in money and the quantity of acres conveyed, with the usual covenant of seisin. Sitting in "a court of law, I think I am bound to look to the deed, as the highest evidence of the final agreement of the parties, both as to the quantity of the land to be conveyed, and the price to be given for it. If there be a mistake in the deed, the plaintiff must resort to a court of equity, which has had a long established jurisdiction in all such cases, and where even parol evidence is held to be admissible, to correct the mistake.”
The plaintiff’s case is one where the remedy is for equitable relief, upon the ground of mistake. (1 Story’s Eq., §§ 141,144.) Though the statutes of limitations are not, in their terms, applicable to courts of equity, yet, in administering relief, they act in obedience and analogy to the statute, and refuse relief wherever the claim would have been barred by the statute, if it had been made in a court of law. (Angell on Limitations, § 26; 12 Pet. 56; 1 Story’s Eq., §§ 64 a, 529.) Courts of equity, it has been said, are no more exempt from statutes of limitations, than courts of law. (Id.) Where the statute is applicable to a claim [352]*352in our courts, it must have its full effect and operation upon it, whether the case be of legal or equitable cognisance. But if the statute does not in terms apply to the case, it has been held to be governed by the analogies in like cases, which are expressly within its provisions. (21 Texas Rep. 264; Leavitt v. Gooch, 12 Id. 95. If the present case, being a suit to correct a mistake, and for compensation for a deficiency in the quantity of the land purchased, is not expressly within the statute, the analogy would seem to be, to an action to recover back money paid by mistake, in those cases where the mistake is not of such character as that the law will hold the party paying concluded thereby, and would bring the case within the period of limitation prescribed in the first section of the statute. (O. & W. Dig., Art. 1333.)
In equity, as at law, the general rule is, that the cause of action arises whenever the party is entitled to bring suit; or, as soon as he has a right to apply to a court of equity for' relief. (2 Story’s Equity, § 1521 a.) In cases of fraud and mistake, it will not begin to run until the time of the discovery of the fraud or mistake. (Id.) Whether fraud or mistake will be admitted, as an exception to the running of the statute, is an open question in this court. (Smith v. Talbot, 18 Texas Rep. 782; Mason v. McLaughlin, 16 Id. 29.)
But if it be admitted as an exception, it is settled that it will only prevent the running of the statute until the fraud is discovered, or by the use of reasonable diligence, might have been discovered by the party applying for relief. Thus, in the case of Grundy v. Grundy, 12 B. Monroe, 269, it was held, in the case of a mistake as to the quantity of land sold, that the statute does not begin to run till the mistake is discovered, or until it ought to have been discovered. But the opinion of the court appears to have been, that to prevent the lapse of time from operating to bar the suit, the plaintiff must show that it was not for the want of ordinary diligence that the mistake was not discovered until within the period of limitation. (Id. 271.) And in Smith v. Talbot, 18 Texas Rep. 774, it was held by this [353]*353court to be the rule, where fraud is allowed as an exception to the statute, that the right of action shall be deemed to have accrued to the plaintiff at the time when the discovery of the fraud was made, or when, by the use of reasonable diligence, it might have been made; and the rule was applied in the determination of that case.
The plaintiff alleges that he did not discover the deficiency in the quantity of land, “until some time in the month of January last.” But he does not assign any reason why the discovery was not sooner made. There was nothing in the nature of the fact, to prevent a discovery. A survey, which might have been made at any time, would at once have led to it.
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Wheeler, C. J.
It appears to be well settled that, in the sale of land, where there has been misrepresentation as to the quantity, though innocently made, and the parties were under a mistake as to the quantity, and the deficiency is so great as to [350]*350have been material, in the object of the purchase, affecting the essence of the contract, equity will grant relief. (1 Sugden on Vendors, ch. 7, § 3; Mitchell v. Zimmerman, 4 Texas Rep. 75; 4 Kent, Com. 457; 1 Story, Eq. § 141.) And this, says Judge Story, would be so, although the land was described as so many acres, “more or less.” It would certainly be so, where the land is sold by the acre, and the statement of the quantity of acres in the deed is not mere matter of description, but is of the essence of the contract.
The plaintiff alleges, that he bought and paid for the land, by the acre; that there was misrepresentation, and a mistake as to the quantity of land conveyed; and that it fell short 115 acres, of the quantity the tract was supposed to contain, and the deed purported to convey. A deficiency so great, in a sale by the acre, of a tract of 500 acres, can scarcely be supposed to have been within the risk which the parties meant to incur, or to have been intended to be embraced by the words “ more or less,” employed in the deed. There can be little doubt, that the allegations of the petition show a cause of action; and the question is, whether it was barred by the statute of limitations, at the time of bringing the suit.
It has been adjudged, by very high authority, upon full consideration, that an action at law, for money had and received, could not be maintained in a case like the present, to recover back the money paid for the number of acres alleged to be deficient. The purchaser must resort to a court of equity to obtain relief on the ground of mistake. (Homes v. Barker, 3 Johns. Rep. 506, 510.) If the present suit be regarded as an action at law, for money had and received, or as an action to recover back, money paid by mistake, it must be held that the cause of action accrued immediately upon the payment of the money; and consequently, that the right of action was barred. Thus, where a personal representative, having found a mortgage deed among the testator’s papers, assigned it, and it turned out to be a forgery, it was held, that the assignee could not recover back from the assignor his money; the assignment not having taken place [351]*351within the period of the statute of limitations, (then six years,) though the discovery that the deed was a forgery, was made within that time, and it not appearing that the assignor knew it to be a forgery. (Bree v. Holbech, Doug. Rep. 654; and see United States Bank v. Daniel, 12 Pet. 32; Angell on Limitations, § 116.)
But the present is not a case in which an action at law, to recover back money paid by mistake, would be the proper remedy, in those countries where the jurisdiction of law and equity are distinct. The ground of relief is the mistake, which having been carried into the deed, the remedy is in equity. In the case first above cited, (3 Johns Rep. 510,) Kent, C. J., said: “I confess that I have struggled hard, and with the strongest inclination, to see if the action for money had and received, would not help the plaintiff in this case; but I cannot surmount the impediment of the deed, which the plaintiff has accepted from the defendant, and which contains a specific consideration, in money and the quantity of acres conveyed, with the usual covenant of seisin. Sitting in "a court of law, I think I am bound to look to the deed, as the highest evidence of the final agreement of the parties, both as to the quantity of the land to be conveyed, and the price to be given for it. If there be a mistake in the deed, the plaintiff must resort to a court of equity, which has had a long established jurisdiction in all such cases, and where even parol evidence is held to be admissible, to correct the mistake.”
The plaintiff’s case is one where the remedy is for equitable relief, upon the ground of mistake. (1 Story’s Eq., §§ 141,144.) Though the statutes of limitations are not, in their terms, applicable to courts of equity, yet, in administering relief, they act in obedience and analogy to the statute, and refuse relief wherever the claim would have been barred by the statute, if it had been made in a court of law. (Angell on Limitations, § 26; 12 Pet. 56; 1 Story’s Eq., §§ 64 a, 529.) Courts of equity, it has been said, are no more exempt from statutes of limitations, than courts of law. (Id.) Where the statute is applicable to a claim [352]*352in our courts, it must have its full effect and operation upon it, whether the case be of legal or equitable cognisance. But if the statute does not in terms apply to the case, it has been held to be governed by the analogies in like cases, which are expressly within its provisions. (21 Texas Rep. 264; Leavitt v. Gooch, 12 Id. 95. If the present case, being a suit to correct a mistake, and for compensation for a deficiency in the quantity of the land purchased, is not expressly within the statute, the analogy would seem to be, to an action to recover back money paid by mistake, in those cases where the mistake is not of such character as that the law will hold the party paying concluded thereby, and would bring the case within the period of limitation prescribed in the first section of the statute. (O. & W. Dig., Art. 1333.)
In equity, as at law, the general rule is, that the cause of action arises whenever the party is entitled to bring suit; or, as soon as he has a right to apply to a court of equity for' relief. (2 Story’s Equity, § 1521 a.) In cases of fraud and mistake, it will not begin to run until the time of the discovery of the fraud or mistake. (Id.) Whether fraud or mistake will be admitted, as an exception to the running of the statute, is an open question in this court. (Smith v. Talbot, 18 Texas Rep. 782; Mason v. McLaughlin, 16 Id. 29.)
But if it be admitted as an exception, it is settled that it will only prevent the running of the statute until the fraud is discovered, or by the use of reasonable diligence, might have been discovered by the party applying for relief. Thus, in the case of Grundy v. Grundy, 12 B. Monroe, 269, it was held, in the case of a mistake as to the quantity of land sold, that the statute does not begin to run till the mistake is discovered, or until it ought to have been discovered. But the opinion of the court appears to have been, that to prevent the lapse of time from operating to bar the suit, the plaintiff must show that it was not for the want of ordinary diligence that the mistake was not discovered until within the period of limitation. (Id. 271.) And in Smith v. Talbot, 18 Texas Rep. 774, it was held by this [353]*353court to be the rule, where fraud is allowed as an exception to the statute, that the right of action shall be deemed to have accrued to the plaintiff at the time when the discovery of the fraud was made, or when, by the use of reasonable diligence, it might have been made; and the rule was applied in the determination of that case.
The plaintiff alleges that he did not discover the deficiency in the quantity of land, “until some time in the month of January last.” But he does not assign any reason why the discovery was not sooner made. There was nothing in the nature of the fact, to prevent a discovery. A survey, which might have been made at any time, would at once have led to it. And the failure to resort to so obvious a means, in the absence of the suggestion of any other cause for the omission, can but be regarded as attributable solely to the plaintiff’s own negligence. We think the discovery of a fact, susceptible of being so readily ascertained, ought to have been sooner made. The negligence of the plaintiff may have put it out of the power of the defendant to have recourse upon his vendor, and to permit a recovery against him after such a lapse of time, might work an irreparable injury, which it probably would not have operated, had the discovery been made earlier, when, we think, it ought to have been made. We are therefore of opinion, that the failure to discover the mistake is no answer to the running of the statute.
It is insisted for the appellant, that the agreement of the 29th of March, 1859, had the effect to take the case out of the operation of the statute of limitations. If so, it must be upon the ground that it contains an acknowledgment of the justice of the plaintiff’s demand. (O. & W. Dig., Art. 1353.) The acknowledgment, to have the effect to take the case out of the operation of the statute, must contain an unqualified admission of a subsisting indebtedness. The rule laid down by the Supreme Court of the United States, in the case of Bell v. Morrison, 1 Peters, 351, and which has been adopted by this court, is, that the acknowledgment must show positively, that the debt is due, either wholly or in part, and must be unqualified. Judge Story [354]*354there held, that if there be accompanying circumstances, which repel the presumption of a promise or intention to pay, or if the expressions be equivocal, vague and indeterminate, leading to no certain conclusion, but at best to probable inferences only, it would not amount to an acknowledgment sufficient to take the case out of the operation of the statute. And such is the language of the modern decisions. (Angell on Lim. § 213, et seq.; Mitchell v. Clay, 8 Texas Rep. 443; Webber v. Cochrane, 4 Id. 31.)
The agreement in question, does not contain an unqualified admission of a subsisting debt, or of the justice of the plaintiff’s claim. It does not contain a direct admission of the existence of the alleged deficiency, in the quantity of the land; but only that, “as represented,” by the plaintiff, there is such a deficiency. There is no direct admission of liability to pay the amount claimed; but, on the contrary, an expression of unwillingness to pay the plaintiff more than he should recover of his vendor. Such language can, by no just interpretation, be construed into an unqualified admission of a subsisting debt. There is no express promise to pay any sum whatever, and no acknowledgment upon which such promise can be raised, by implication of law. We are of opinion, therefore, that there was no acknowledgment, sufficient to take the case out of the operation of the statute, and that the court did not err, in holding the plaintiff’s suit barred thereby.
That the statute of limitations, may be interposed by demurrer or exception, expressly setting up that defence to the action, has been settled by former decisions. (Hopkins v. Wright, 17 Texas Rep. 30; Sayles’ Practice, § 188.) The judgment is affirmed.
Judgment affirmed.