77 So. 22 | Ala. | 1917
Two counts of plaintiffs' (appellees') complaint alleging a breach of covenant appear to have been put out of the case by defendant's plea to the venue. The remaining counts, upon which the case went to the jury, proceeded upon the ground that defendant had falsely and fraudulently represented the lines of a small tract of land that plaintiffs had bought from defendant. Defendant was entitled to the general affirmative charge which he requested in proper form. The alleged cause of action was, on the undisputed evidence, barred by the statute of limitations, unless saved by section 4852 of the Code which provides that:
"In actions seeking relief on the ground of fraud, where the statute has created a bar, the cause of action must not be considered as having accrued until the discovery by the aggrieved party of the facts constituting the fraud, after which he must have one year within which to prosecute his suit."
In the first place, the burden of allegation and proof as to fraud and its discovery within one year rested upon the plaintiffs, and the facts on which it was intended to base the extension of the statute should have been pleaded in reply to defendant's plea of the statute. In a way plaintiffs had alleged fraud in their complaint, but, after the statute of limitations had been pleaded, they should have shown by replication how and when the facts constituting the alleged fraud were discovered. Gordon v. Ross,
Reversed and remanded.
ANDERSON, C. J., and McCLELLAN and GARDNER, JJ., concur.
