The grounds of demurrer assigned included the general demurrer (Code 1907, § 3126); other grounds directed to the bill as a whole; and still others directed to separate parts of the bill, seeking an accounting for rents, set-off between certain parties, removal of clouds on the title, etc.
The decree sustained the general demurrer, decreed there was no equity in the bill, and dismissed it as to respondents whose demurrer was sustained.
It is urged on rehearing that the decree should be affirmed if any of the grounds of demurrer are well taken.
A decree sustaining a demurrer to a part of a bill, has the effect of striking that part. The complainant may thereupon so amend the part stricken as to give the bill equity in that regard, or he may by express amendment, eliminate the portion stricken by demurrer, or, if the bill still contains equity, may proceed thereon without amendment as if the defective feature had been stricken on motion. In such case it is error to dismiss the bill. Pollak v. Stouts Mountain C. C. Co.,184 Ala. 331, 63 So. 531; 21 C. J. 452.
Where, as in this case, the decree expressly sustains the general demurrer going to the equity of the bill as a whole, and dismisses the same as to the demurrants, no reference being made in the decree to the grounds of demurrer going to parts of the bill, it must be taken that the trial court did not consider nor pass thereon. They are not here presented for review.
It is further insisted that the bill as last amended shows that the respondent John H. Sherrill is not a tenant in common in the entire property, that he and respondent Anders have partitioned the property in such sense as to pass to Anders the two-sevenths interest of John H. Sherrill in the portion in Anders' possession. The original bill expressly avers that John H. Sherrill is a tenant in common of the entire tract of lands; that he has mortgaged his undivided interest therein; prays for a sale of the whole and payment of the mortgage debt out of his share of the proceeds. These averments remain in the bill as amended. We construe the amendment to mean that, by arrangement between John H. Sherrill and James A. Anders, each has and holds possession of a portion of the common property of complainants and John H. Sherrill. This separate use and enjoyment is pertinent to the matter of accounting sought in the bill. There was no demurrer after amendment specially pointing out that John H. Sherrill had parted with all interest in a portion of the lands. This would be necessary in order that complainants have an opportunity to amend either by eliminating one portion of the lands, or by so correcting the averments as to conform to the original *Page 401 bill in its averments of joint ownership of the entire tract.
The record shows that the bill was filed 10 years and 3 days after the death of James A. Sherrill, the life tenant. It further avers that after the death of the life tenant, respondent Anders set up a claim of adverse possession to the lands then in his possession. It further avers that the respondent Anders was holding as a tenant of James A. Sherrill under a redemption agreement, and had executed his note for the rent of 1910. We cannot say the bill shows affirmatively that adverse possession began within 3 days after James A. Sherrill's death. The assignment of demurrer No. 26 was therefore not well taken.
The application for rehearing is overruled.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.