Paul v. Prior

In a statutory action for partition, the parties filed a stipulation that they were tenants in common of the real estate in question, and that commissioners might be appointed to make partition. Subsequent to making such appointment, the trial court dismissed the action as barred by the statute of limitations.

The statute of limitations is an affirmative defense, required to be pleaded. V.R.C.P. 8(c). Admitting there was no such pleading in this case, or any motion to amend the pleadings, appellees claim that the matter was raised on argument and discussed without objection, thereby being put…