I dissent, because I think there was no error on the part of the Circuit Judge in sustaining the demurrer. Time will not permit me to do more than simply indicate the grounds of my dissent. There was an entire absence from the complaint of any allegation that either the plaintiffs or their ancestor were ever seized or possessed of the land in question, which was necessary to constitute a cause of action for partition. Nor are the necessary allegations to constitute a cause of action for the recovery of real property to be found in the complaint. On the contrary, the allegations in the complaint plainly show that the plaintiffs had been ousted from the possession of the land for more than twenty years before the commencement of this action; for the allegation in the first paragraph of the complaint is that Thomas A. Garrett died in November, 1865, and in the seventh paragraph of the complaint it is alleged that the land was conveyed to E. W. Moise, at some date not stated, who subsequently conveyed the same to others, under whom defendants claim; and in the ninth paragraph it is alleged that the defendants and those through whom they derive title to the interest of said Elizabeth Moore, have received and enjoyed all the rents, income and profits from the above described several parcels of land since the death of said Thomas Garrett — a period of more than twenty years before the commencement of this action, on 31st January, 1893. I do not understand that any of the questions raised in this demurrer wrere raised or. considered *321in either of the previous hearings by this Court, and, therefore, when the judgment was reversed (48 S. C., 28,) and the case remanded for a new trial, the case stood, so far as the questions now raised are concerned, precisely as if there had been no previous trial, and the defendants had the right to interpose the demurrer under consideration — the only limitation upon such right being that no question of law previously decided could be again raised by the demurrer— but no such question is now raised. It is not necessary to consider the question of the amendments to the complaint, because at the hearing of this appeal counsel for plaintiffs distinctly conceded, and such concession was then noted, “that the amendments should be stricken out.”