Guerard v. Jenkins

The opinion of the Court was delivered by Mr. Justice Woods. This is an appeal from an order sustaining a demurrer to the complaint, and the question is not 'whether the complaint states a cause of action from *224 which the relief asked for could flow, but whether, on proof of facts alleged, the plaintiff would be entitled to any relief at all. 1 It appears from the complaint the defendants are in possession, claiming to own the land in dispute; and plaintiffs assert a legal title against them. The case of Pollitzer v. Beinkempen, 76 S. C., 517, is conclusive against t'he complaint as a statement of a cause of action to quiet the plaintiff’s title to* one-half interest in the land. But taking the complaint as true, it states a cause of action for the recovery of possession of one-half interest in the land from which, according to plaintiff’s allegations, he was unlawfully ousted by his co-tenants, the ouster consisting in making a deed of conveyance purporting to convey the entire property. There is nothing in Pollitzer v. Beinkempen opposed to this view, for that case was heard on an agreed statement of facts which showed, as the Court held, that the plaintiff was not entitled to relief of any kind. The fact that the plaintiff asks for a removal of the cloud on his title, when the allegations do not warrant relief of that character, does not prevent his having any other relief to which the facts entitle him. Independent S. F. Co. v. Richland Lodge, 70 S. C., 572, 50 S. E., 499; McMillan v. McMillan, 77 S. C., 511. 2 If it be true, this action, regarded as a legal action to' recover possession of real estate, may be defeated by the plea of the statute of limitations, that plea must be set up in the answer; it cannot be made effective by demurrer. Code of Procedure, Section 94; Jones v. Boykin, 70 S. C., 315, 49 S. E., 877. For these reasons the judgment of the Circuit Court is reversed. Messrs. Justices Gary and Jones concur.