On Motion For Rehearing.
Appellant has filed an elaborate motion for rehearing. We shall discuss only one of the propositions presented, as the others were fully covered in our original opinion.
Appellant urges that we erred In holding that the agreement between the parties relative to the roadway was void under the statute of frauds, Because nq such defense was pleaded by appellee. Plaintiff’s petition showed upon its face that the alleged agreement as to the roadway was an agreement made for the conveyance of an interest in land, a perpetual easement, and that same was not in writing. To this petition appel-lee answered by general demurrer, general denial, etc. Since the decision in Stovall v. Gardner, 100 Tex. 25, 94 S. W. 218, the rule is well settled that where the plaintiff’s petition discloses upon its face a case that is within the statute of frauds, the defense afforded by said statute may be taken advantage of by general demurrer. In other words, when a plaintiff’s petition shows upon its face that the cause of action asserted is within the statute of frauds, it is subject to general demurrer. The motion is overruled.