This is an action to cancel a patent, issued by the State, for the south half of section sixteen, in township twenty-one south, of range twenty-five east, of Mount Diablo meridian, on the ground that the same was procured to be issued by the fraudulent acts of certain of the defendants, of which acts the patentee had notice at the time when both the certificate of purchase and patent were issued. The action is “an action for relief on the ground of fraud ” within the meaning of sub. 4 of sec. 368, Code of Civil Procedure. That section provides that such action must be commenced within three years after the cause of action accrued; and that it shall not be deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud. The patent was issued in May, 1873; the action was commenced in December, 1876 ; and it is not expressly averred in the complaint, nor are any facts therein stated which show that the plaintiff did not discover the facts constituting the fraud until within three years before the commencement of the action. When the acts constituting the fraud occurred more than three years before the commencement of the action, the plaintiff must allege a discovery thereof within three years in order to avoid the bar of the statute. The demurrer to the ’complaint, on the ground that the action was barred by the fourth subdivision of sec. 338, should have been sustained.

Judgment reversed and cause remanded, with directions to sustain the demurrer to the complaint.