70 Tenn. 17 | Tenn. | 1878
delivered the opinion of the court.
To the bill filed on the 8th of June, 1870, the defendant put in an answer on the 15th of June, 1871, after a pro covfesso taken. At the April terra, 1874, an application was made for leave to file an amended answer relying upon the statute of limitations as a defense to the complainant’s demand. So far as the
• The court is always reluctant to permit a material amendment of an answer after evidence has been taken, and especially where the object of the amendment is to rely upon an unpopular defense, such as the statute of limitations, after having experimented with the court upon the merits. Cocke v. Evans, 9 Yer., 287; Smith v. Babcock, 3 Swan., 583. And it will refuse the application unless the defendant present such a case as makes it appear due to justice to permit the alteration. Third Av. 8a,v. Bank v. Dimoclc, 9 C. E. Green, 26; Wells v. Woods, 10 Ves., 401. The answer being a solemn averment of record, the same rule applies whether it is put in under oath or not. Curling v. Marquis of Townsend, 19 Ves., 628; Taylor v. Dodd, 5 Ind., 246; Sto. Eq. Pl., see. 874, 875a.
We are inclined to think, however, with his Honor the Chancellor, that the amended answer would not have changed the result. The defense of the statute of limitations applies only to the three notes given for the rent of 1856, 1857, 1858. The defendant is shown to have recognized the validity of these claims repeatedly after the filing of the bill, and to have expressed himself so decidedly as to induce two third persons to buy them from the complainant. The defense would not avail against the rents of the subsequent years. The reliance as against them is upon the fact that they were paid. There is evidence showing that during the years when the defendant’s testator rented the land and slaves of the complainant, his son, at an annual rent of $1000, and the payment of the son’s personal expenses, the latter did draw large sums of money from the banks where the father kept his deposits, which, it seems, all _ the sons were permitted to do. But the complainant, during these years, or the most of them, was the companion and traveling escort of his mother, then in feeble health and seeking its restoration, and drew money for their common expenses. It does not appear that wliat he drew was ever considered by the parent or the son as in payment or creation of a debt. The complain
The Chancellor rendered a decree in favor of the complainant for the full amount of his demand, and we are not satisfied that he was in error in so holding. The decree will be affirmed with costs.