Hagely v. Hagely

Searls, C. — This is an action of ejectment, to recover land situate in the county of Napa. Plaintiff had judgment, from which, and from an order denying a new trial, defendant appeals.

The amended answer of defendant sets up several separate defenses. A demurrer was interposed thereto by plaintiff, which was sustained by the court to the second cause of defense in such answer, and the ruling is assigned as error.

The portion of the answer at which the demurrer was aimed, and to which it was sustained, averred that plaintiff’s cause of action was barred by the statute of limitations, to wit, by the provisions of sections 318 and 319, [349]and subdivision 3 of section 323, of the Code of Civil Procedure of the state of California; and then proceeds to state that defendant and plaintiff for many years lived and cohabited together as man and wife; that children were born to them; that the land in question was purchased with the funds of defendant for the benefit of herself and children; that a deed was taken therefor in the name of plaintiff; and other facts tending to show that plaintiff held the title in trust for defendant.

At least two separate defenses were contained in this portion of the answer, which were not separately stated.

This, however, is not one of the causes for which a demurrer to an answer may be interposed (Code Civ. Proc., sec. '444); such a defect can only be reached by motion to strike out or by some other appropriate proceeding.

Some of its allegations are also subject to the charge of being ambiguous, unintelligible, and uncertain in this, that it is left uncertain thereby whether defendant intended to set forth the facts as a plea of the statute of limitations, or as an equitable defense to plaintiff's cause of action.

The demurrer was properly sustained.

It is proper to state, also, that subsequent to the order sustaining the demurrer, defendant filed an amended answer, in which she interposed the plea of the statute of limitations.

Her counsel insists in their brief that the facts set out in the defense demurred to were stated as a plea of the statute of limitations.