52 P. 364 | Ariz. | 1898
Appellee, Joseph H. Hamill, in his character as administrator of the estate of Frank D. Johnson, deceased, sued the appellant in ejectment for the possession of lots 12 and 19, in block 79, in the town of Globe. The complaint was in the usual form. A default was taken against appellant, which was subsequently set aside on her motion, and leave granted her to answer the complaint. A demurrer to her original answer having been sustained, by leave of the court appellant filed an amended answer. This amended answer contained a number of defenses to the action,—the first being the plea of “not guilty”; the second set up the plea of the statute of limitations; and the third, stripped of its unnecessary verbiage, in substance set up the following facts: That
Even if the demurrer to the third defense set up in appellant’s amended answer had been properly taken, no judgment should have been entered upon the pleadings, for the reason that there were still left issues to be tried by the court,—that of the general issue made by the plea of “not guilty,” and that of the plea of the statute of limitations. An examination, however, of the third defense made in the answer discloses that the facts therein stated were sufficient to constitute a good defense to the action, so far as it related to a part of the premises sued for,—to wit, lot 19. A part performance of an ■executory contract, even though not reduced to writing, is sufficient to take the contract out of the provisions of the
Street, C. J., Doan, J., and Davis, J., concur.