Brown v. Martin

By the Court, Sanderson, C. J. This is an action of ejectment, and the appeal stands upon the judgment roll alone. Two points are made by comisel for •appellant:

First—That it appears upon the face of the complaint that the plaintiff was in possession of the premises in controversy at the time the action was commenced.

Second—That the complaint does not state facts sufficient to constitute a cause of action.

I. The allegations of the complaint are: “ That on the 1st day of January, 1858, the said plaintiff was and ever since has been, and still is the owner hr fee simple, seized and possessed, etc. * * * That on the 2d day of January, 1858, and while the plaintiff was so the owner in fee simple, seized and possessed, defendants entered and ousted him, and from thence hitherto have and still do withhold the same, etc.”

It is true, as claimed, that the foregoing allegations show that the plaintiff is still possessed of the premises; but the learned counsel for appellant must see that they also show that the plaintiff was dispossessed on the 2d day of January, 1858, by the defendants, who have ever since withheld possession. All that need be said upon this point is, that had counsel interposed a demurrer to the complaint in the Court below on the ground that the same was ambiguous, miintelligible, and uncertain, it is possible the Court would have sustained the demurrer, in which event the plaintiff would have been allowed to amend so as to remove the ambiguity. No demurrer was interposed for this cause, and under the forty-fifth section of the Practice Act the objection is deemed to have been waived. It is, therefore, too late to make the objection for the first time in this Court.

[89]' II. It is next claimed that under a demurrer which merely states in general terms that the complaint does not state facts sufficient to constitute a cause of action, the defense of the Statute of Limitations may be made. The late Supreme Court held, in several cases, that the defense of the Statute of Limitations could be interposed by demurrer, and the ground of the decision was, that the pleadings under our system more nearly assimilate equity than common law pleadings under the former system, and that in equity the defense of the Statute of Limitations could be made by demurrer. In a demurrer to a bill in equity, under the former system, it was usual to state, in addition to the cause of demurrer, the particular grounds upon which the alleged cause was based; and if the Statute of Limitations was relied on as a cause of demurrer, it had to be specially so stated. Nor could the aid of the Statute of Limitations be invoked by demurrer unless it appeared upon the face of the bill that the cause of action was barred. The form of demurrer under the old chancery system runs thus : “ This defendant doth demur in law to the said bill, and for cause of demurrer showeth that it appears by the said bill that, etc.”—stating the ground upon which the defendant relies.