39 Fla. 76 | Fla. | 1897
The chancellor should have overruled the plea filed by appellee, Ellsworth, instead of allowing it on the argument. The proper method of testing the legal sufficiency of a plea is to set it down for argument, which is in effect a demurrer to the plea. Upon the hearing every allegation in the bill not denied by the plea is taken as true, and every allegation of the plea is likewise taken as true. Hart vs. Sanderson’s Administrators, 18 Fla. 103; 1 Beach’s Modern Equity Practice, sec. 326; Story’s Eq. Pl., secs. 694-697; 1 Daniell's Ch. Pl. & Pr., p. 695. From the plea it appeared that the tax sale was made May 2, 1887, but by the bill it was showm that no deed was executed pursuant to this sale until August 7, 1888; and this allegation was not denied by the plea. The plea admitted that the present suit was begun August 6, 1891, which was within three years from the date of the deed, but more than four years from the date of sale. It is contended by appellee that these facts were sufficient to sustain the plea under the provisions of section 60, Chapter 3681, approved June 13, 1887, which, leaving out the proviso as inapplicable to this case, reads as-follows: “No suit or proceeding shall be commenced by a former owner or claimant, his heirs or assigns, or his or their legal rejwesentatives, to set aside any
The decree sustaining the plea, and all subsequent ■orders based thereon, are reversed; and the •cause remanded with directions to the court below to