On motion by plaintiffs the court struck out all the defenses and the counterclaim. The first defense adequately sets forth that there was no consideration for the note and the defense is, therefore, sufficient. ( Ellis v. Keeler, 126 App. Div. 343; California Packing Corp. v. Kelly S. D. Co., 228 N.Y. 49; Donnelly v. Bauder, 217 App. Div. 59; Zebold v. Hurst, 65 Okla. 248; 166 P. 99.) The second defense is a mere conclusion. It states that notwithstanding his agreement with the defendant, entered into simultaneously with the execution of said notes or either of them, the plaintiff Lee Shubert diverted the said notes from the purpose for which they were made, executed and delivered to him, by defendant.

"In an action to cancel a void conveyance of land, the plaintiff is not barred by any lapse of time short of that sufficient to establish title by prescription, as fixed by subdivision 4, 12 O.S. 1951 § 93[ 12-93]." If any cause of action stated in a pleading is not vulnerable to the charge upon which it is attacked by general demurrer, the demurrer should be overruled. Wallace v. Williams, Okla., 313 P.2d 784; Zebold v. Hurst, 65 Okla. 248, 166 P. 99; Taylor v. Clark, Okla., 380 P.2d 250. Also see Crumley v. Smith, Okla., 397 P.2d 119. We hold that since Ross sisters' cause of action has arisen, partly at least, out of alleged fact of lack of capacity of grantor, the fifteen year limitation period contained in 12 O.S. 1971 § 93[ 12-93](4) is applicable.

See Pepper v. Truitt (U.S.C.A. 10th Cir.) 158 F.2d 246, followed in Lawson v. Haynes (U.S.C.A. 10th Cir.) 170 F.2d 741. This court has often held that if any cause of action stated in a pleading is not vulnerable to the charge upon which it is attacked by general demurrer, the demurrer should be overruled. See Wallace v. Williams, Okla., 313 P.2d 784, and Zebold v. Hurst, 65 Okla. 248, 166 P. 99, L.R.A. 1917F, 579. Therefore, since plaintiffs' alleged cause or causes of action, if any, appears to have arisen, partly at least, out of the alleged fact that no valid consideration was ever paid for the deeds sought to be cancelled, and the five-year limitation period is the one, if any, applicable to such a cause, the trial court erred in sustaining general demurrers to plaintiffs' second amended and supplemental petition and dismissing the action at least as to the defendants, Floyd M. Clark and Emma Jo Oliphant, both of whom became parties to this action by personal service within five years of the execution, presumed delivery, and filing of record of the deeds in which they were grantees.

J.W. Porter, for Appellant. In a suit upon a promissory note, an allegation in the answer that there was no consideration given by plaintiff or received by the defendant states a good defense, and is sufficient for an admission of proof as to the circumstances under which the note was given. (3 R. C. L. 925; Anderson v. Nystrom, 103 Minn. 168, 123 Am. St. 320, 14 Ann. Cas. 54, 114 N.W. 742, 13 L.R.A., N.S., 1141; Zebold v. Hurst, 65 Okl. 249, 166 P. 99.) When the plaintiff in a suit on a promissory note rests his case relying upon the consideration imported by the note, and the defendant having pleaded want of consideration or illegal consideration introduces evidence tending to establish such fact, the burden of proof is on the plaintiff to show by a preponderance of the evidence that there was legal consideration.

We submit that the defense is well pleaded. Benton v. Benton, 27 L.R.A. (N.S.) 300, 97 P. 378; Zebold v. Hurst, 166 P. 99. Where there is a defense of either want or failure of consideration, the facts showing such want or failure of consideration should be affirmatively pleaded.

Counsel for plaintiffs in error assign this action of the trial court as their next specification of error for reversal of this case. In support of this contention, counsel cite section 7698, Comp. Stats. 1921; Hagan v. Bigler, 5 Okla. 576, 49 P. 1011; Deming Investment Co. v. Shannon et al., 62 Okla. 277, 162 P. 471; Zebold v. Hurst, 65 Okla. 248, 166 P. 99. These citations, however, are not applicable to the question under consideration, but support the general rule, which is well settled, that as between the original or immediate parties to the execution of a bill or note, the consideration may be inquired into and shown, but in the case at bar, Thomas E. Bobier and Mrs. Thomas E. Bobier were not parties to the instrument, and therefore the rule is not applicable. In Law of Defenses in Action on Commercial Paper, by Joyce, sec. 187, p 211, we find the following:

The reason for the rule is that a promissory note, in order to constitute a valid contract, must be supported by a valid consideration. Zebold v. Hurst, 65 Okla. 243, 166 P. 99. This court in the case of Jesse French Piano Organ Co. v. Bodovitz, 73 Okla. 87, 174 P. 765, in the second paragraph of the syllabus, held:

"Where a petition states several causes of action in several counts, if any of the counts in the petition state facts sufficient to constitute a cause of action, though such facts may not entitle the plaintiff to the entire relief prayed for, a general demurrer to such petition should not be sustained." Following the cases of Zebold v. Hurst, 65 Okla. 248, 166 P. 99; Blackwell Oil Gas Co. v. Whitesides, 71 Oklahoma 174 P. 573; Ardmore State Bank v. Mason, 30 Okla. 576, 120 P. 1080, 39 L. R. A. (N. S.) 292, Ann. Cas. 1913B, 1181; Cockrell v. Schmitt, 20 Okla. 210, 94 P. 521, 129 Am. St. Rep. 737; and it has since been followed in the case of Jackson v. Levy, 75 Okla. 256, 183 P. 505, and numerous later decisions of this court which it is not necessary to cite. From an examination of the petition herein, it is obvious that the same states a cause of action in ejectment, and one to quiet title, which are not barred by limitation.

This court has uniformly held that where a pleading states any facts upon which the pleader is entitled to any relief under the law, a general demurrer should not be sustained thereto. Bishop-Babcock-Becker Co. v. Estes Drug Co., 63 Oklahoma, 163 P. 276; Blackwell Oil Gas Co. v. Whitesides, 71 Oklahoma, 174 P. 573; Zebold v. Hurst, 65 Oklahoma, 166 P. 99; Chupco et al. v. Chapman et al., 76 Oklahoma, 160 P. 88; C. E. Sharp Lumber Co. v. Kansas City Ice Co. et al., 42 Okla. 689, 142 P. 1016. The rule is equally well settled that on demurrer to the pleading as defective, in that it does not state facts sufficient to constitute a cause of action or a defense, the pleading must be liberally construed, and all its allegations for the purpose of the demurrer taken as true. And such demurrer can be sustained only when the pleading presents defects so substantial and fatal as to authorize the court to say that, taking all the facts to be admitted, they furnish no cause of action whatever. If the facts stated in the pleading entitled the party to any relief, a demurrer for want of sufficient facts should be overruled. Oklahoma Sash Door Co. v. American Bonding Co., 67 Oklahoma, 170 P. 511; Smith-Wogan Hardware Co. v. Moon Buggy Co., 26 Okla. 161, 108 P. 1103.

The explanation of George Despot, denied by defendant and unsupported by any corroborating facts, does not constitute that preponderance of the testimony required by law. The plea of want of consideration need not set out the circumstances under which the check was given. B.C. Napier Co. v. Feltner, 216 Ky. 509, 287 S. W. 974; Zebold v. Hurst, 65 Okl. 248, 166 P. 99, L.R.A. 1917F, 579; Scott v. Pittman et al., 8 La. App. 609; Pegram v. Cooper, 26 La. Ann. 361. On the other hand, the plea of failure of consideration must set out the time, place, and circumstances of such failure.