Opinion
10546
December 20, 1920.
Before RICE, J., Williamsburg, Spring term, 1920. Appeal dismissed.
Action by Eleida V. Fulmore et al. against Troy P. Fulmore et al. From order overruling demurrer to the complaint, the defendants appeal.
Messrs. Kelly Hinds, for appellants, cite: Adverse possession by one cotenant against another cotenant for more than twenty years will raise presumption of ouster, and deed from other cotenant: 80 S.C. 110; 2 Hill Ch. 513; 91 S.C. 303; 50 S.C. 168; 26 S.C. 185; 48 S.C. 489; 48 S.C. 28; 40 S.C. 179. Adverse possession: 2 C.J. 122, 128; 96 S.C. 461; 48 S.C. 293. If begun against ancestor, continues against heir: 20 S.C. 52; 59 S.C. 440; 53 S.C. 128. Laches: 43 S.C. 436; 62 S.C. 89; 91 S.C. 312.
Messrs. Arrowsmith, Muldrow, Bridges Hicks, for respondents, cite: All paragraphs of pleading must be considered, and construed liberally: Code Proc. 1912, sec. 209; 70 S.C. 274; 51 S.C. 439; 97 S.C. 429; 12 S.C. 1. Objection that action not commenced in time must be by answer: Code Proc. 1912, sec. 119; 29 S.C. 256; 16 S.C. 378; 22 S.C. 583; 80 S.C. 223; 9 S.C. 376; 38 S.C. 496; 59 S.C. 440; 70 S.C. 315. All cases cited by appellant are cases in which answer was filed. No stale demand: 49 S.C. 192. Not necessary to negative laches in complaint: 91 S.E. 312; 76 S.C. 170; 97 S.C. 224.
December 20, 1920. The opinion of the Court was delivered by
This is an action for partition. The defendant demurred to the complaint on the ground that the complaint showed that the defendant had been in exclusive possession of the land long enough to presume a deed from its cotenants The demurrer was overruled, and this appeal is from the order overruling the demurrer.
Demurrer is not available to the defendant. Section 119, Code of Procedure, declares:
"But the objection that the action was not commenced within the time limited can only be taken by answer."
The appeal is dismissed.
MESSRS. JUSTICES HYDRICK and WATTS concur.
MR. CHIEF JUSTICE GARY and MR. JUSTICE GAGE absent on account of sickness.