| Md. | Jul 12, 1866
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 the claim.
We concur with the Court below, that the evidence reported by the anditor is entirely insufficient to establish the claim of the complainants. Brendel’s own proof distinctly disproves it. There was no contract to charge for board, and no intention to do so. No thought of charging the bill ever occurred until after Mrs. Muller’s death, and that was induced by some idea of ill-treatment by Muller or the family, probably having reference to some disappointment of a legacy. If so, it was a mere matter of hope or expectation, there being no proof whatever that there existed between him and Muller any understanding that he was to receive a legacy for his board. Nor can he be remitted to a claim which never existed. In this, as well as in other respects, is the case unlike that in Baxter vs. Gray, 42 Eng. C. L. Rep., 402, where the surgeon was remitted to his right to make good and recover an existing claim.
The auditor also allowed out of the general fund the sum of $100 for defendants’ solicitor’s fee, upon the authority of an agreement filed in the cause between the solicitors of both parties. The parties, being adult, could so agree.
The Court below considered that this was improperly allowed out of the general fund, although no specific objection was taken to the allowance, and disproved of it. Whatever views might be entertained as to the true construction of the agreement, the parties affected by the decision on this item of the account have not seen proper to appeal from the order of the Court below, and we can do no more than affirm it.
The order passed by the Court below, sustaining the exceptions to the audit in the particulars mentioned by him, ( and concurred in by this Court,) and remanding the proceedings to the auditor with instructions to state an account in conformity therewith, is accordingly affirmed.
The costs of the appeal to be paid by the appellants.
Order affirmed and cause remanded.