Brendel v. Strobel

Weisel, J., delivered the opinion of this Court. The bill was filed by the appellant, as creditor and heir, and with it, as part thereof, was exhibited the account or. claim of Brendel. The defendants, all adults, answered, admitting everything alleged, excepting the existence of the complainant’s claim. That they fully denied.

The parties agreed to a decree, “ all equities in regard to the complainant’s claim to be reserved for further consideration.” A decree with such reservation was accordingly passed. Sale was made, reported and finally ratified, and the cause referred to the auditor to state an account upon proofs to be taken by him. The auditor reported his account, with the proofs taken by him, allowing the complainant’s claim. Exceptions were filed, first, because of the want of sufficient evidence to establish the claim; secondly, because, if it existed it was barred by limitations. ■ At the same time the defendants filed a petition for leave to amend their answer in order to add to it the plea of limitations.

This application was set down for a hearing, and although the record shows no hearing was had, yet the plea was filed. The Court below did not pass distinctly on this branch of the case, but determined the controversy on its merits. Nor does it appear to this Court that we should dispose of the question of limitations necessarily. We think, however, that it is proper to say, that this defence, not having been set up in the answers, was thereby waived, and could not be relied upon afterwards by way of exception to the audit.

Welch vs. Stewart, 2 Bland, 41 . It was also too late to amend the answer by incorporating the plea. The agreement of the parties for a decree, reserving the equities in regard to the claim, will not admit of a construction for the introduction of other than meritorious defences, among which the lapse of time and the staleness of the demand may be taken into consideration in passing upon the merits of