
    Ella Smith’s G’d’n, et al., v. Robert Calvin, et al.
    Suit to Quiet Title — Averment of Ownership.
    A petition to quiet title is good which avers title in an ancestor and that it was vested in plaintiff by his will.
    Statute of Limitations.
    The statute of limitations must be set up if relied upon, by plea and cannot be taken advantage of by demurrer where the only defect in plaintiff’s petition is that his cause is barred by time.
    APPEAL PROM TAYLOR CIRCUIT COURT.
    November 29, 1876.
   Opinion by

Judge Elliott:

The appellants claim lots Nos. 12 and 13, in Campbellsville, under the will of their grandfather, and the appellees claim it under a mortgage from the said ancestor and a continued adverse possession for over fifteen years. The appellants demurred to the answer of appellees, and the court sustained the demurrer, not to the answer, but to the appellants’ petition, and whether the demurrer was properly sustained is the only question for our consideration.

As appellants aver title in their ancestor, and that it was vested 'in them by his will, and as they do not even state that appellees had been in possession fifteen years, it seems to this court that the petition stated a good cause of action. The statute of limitations must be set up if relied on by plea, and cannot be taken advantage of by demurrer where the only defect in plaintiff’s petition is that his cause of action is barred by time.

D. G. Mitchell, J. N. & D. W. Lindsey, for appellants.

William Howell, for appellees.

Wherefore the judgment is reversed with directions to overrule the demurrer, and for further proceedings consistent with this opinion.  