The only question raised by the pleadings is whether the counterclaim set up by the defendants was barred by the statute of limitations. The plaintiff insists that it is barred by the •Code of Civil Procedure, §34, sub-sec. 9, which bars actions after three years, and as originally enacted, reads:
“An action for relief on the ground of fraud, in eases which heretofore were solely cognizable by courts of equity, the cause of action in such cases not to be deemed to have accrued until the discovery by the aggrieved party of the facts constituting fraud.”
*426This act was amended by the act of 1879, ch. 251, by inserting after the word “fraud,” wherever it occurs, the words “or mistake.”
So that, prior to the act of 1879, there was no statutory bar of three years to an action for relief on the ground of mistake.
In relying upon this enactment, the plaintiff sets up a discreditable defence. He says to the defendants, “ I know I purchased this land as your father’s agent, and that he paid the purchase money, and I ought to be bound in conscience to make you a deed for it, but I committed a fraud on you by taking the deed to myself, and I now' avail myself of that fraud to defeat your claim.”
The statute of limitations wrns mainly intended to suppress fraud, by preventing fraudulent and unjust claims from being asserted after a long lapse of time. It ought not, therefore, to-be so construed as to become an instrument to encourage fraud,, if it admits of any other reasonable interpretation. Angel on Limitations, §186. The like spirit should govern the construction of the facts and circumstances of a transaction so as to take it out of the operation of the statute, where gross injustice would be worked by its application.
"Viewing the facts of this -case in that light, we do not think the statute of limitations, relied on by .the plaintiff, can avail him.
The defendants, in the statement of the facts of their counterclaim, do not charge the plaintiff with fraud in taking the deed in his name. They allege that it was agreed, either that the deed should be made to the plaintiff and the land by him conveyed to Ledbetter, or that the deed should be made directly to Ledbetter. And on the trial, one Sandy Leak, introduced as a witness by the defendants, testified, “that the plaintiff told witness that Jack Ledbetter furnished him the money to buy the land, and old man Walter Leak made the deed wrong, and that they were to meet to exchange the deeds.” So that whatever purpose the plaintiff may have entertained subsequently to defraud the defendants, the evidence tends to establish the fact that there was no fraud practiced by the plaintiff in the execution of *427the deed, but that it was executed lw the vendor through a mistake (which was natural enough, as the money was handed to him by the plaintiff); whereas the section of the Code of Civil Procedure upon which the plaintiff relies for barring the defendants’ claim, as originally passed, only applied to an action for relief on the ground of fraud; and as there was no fraud alleged in this case, but only a mistake, the enactment has no application. Nor in its amended form, as enacted by the act of 1879, did it have any application, for Jack Ledbetter died in 1873, before the act of 1879 was passed. Nor did it apply to the defendants after the amendment in 1879, for the reason that the defendants who were the heirs-at-law of Jack Ledbetter at that time, were all minors, under the disability of infancy, and continued to bo so until the commencement of this action.
But aside from that view of the question, and conceding that this was a constructive trust, which could only be enforced under the former practice, by a court of equity, and that the deed was obtained by fraud, it does not follow that the defendants are bar-rod by the statute. Jack Ledbetter took possession of the land soon after the purchase by the plaintiff as his agent, and he and his heirs, the defendants, have held the peaceable possession of it ever since; and in Stith v. McKee, 87 N. C., 389, Mr. Justice RuffiN, speaking for the court, said, “that one may preclude himself by his laches from asserting a right which otherwise a court would help him to enforce, there are abundant authorities to show; but to do so in any case, there must be something on 1ns part which looks like an abandonment of the right, or an acquiescence in its enjoyment by another, inconsistent with his own claim or demand, and accordingly we have searched in vain for a single instance in which the court has withheld its aid in the enforcement of an equity, on the ground of the lapse of time, when the party seeking it has himself been in the continued possession of the estate to which that equity was an incident.”
We arc of opinion there is no error in the judgment of the superior court. It must therefore be affirmed.
No error. Affirmed.