Eccleston J.,
delivered the opinion of this court.
The first ground urged by the appellant for a reversal of the decree of the circuit court is, that the judge erred in permitting the defendant to file his amended answer. But that being a matter of discretion is not subject to revision on appeal.
In Thomas vs. Doub, 1 Md. Rep., 324, an application by the defendant for permission to file an amended answer having been refused by the chancellor, it was held that such refusal could not be revised in this court, because it was the exercise of a discretionary power. If this be true in regard to refusing it must be equally so in reference to allowing the amendment. See also the act of 1854, ch. 230, which provides, that “it shall and may be lawful, upon application of either complainant or defendant to any court in this State, sitting as a court of equity, and- upon payment of such costs as the court may direct, to amend at any time before final decree, the bill, answer, pleas, demurrers, or any of the proceedings in any cause before the court, so as to bring the merits of the case in controversy fairly to trial.”
The answer as amended having been received by order of the court, the question is, what effect it should have upon the case; and in reference to this question we propose first to ascertain whether the act of 1852, ch. 133, has changed the practice in chancery as regards the effect of an answer, when a cause at final hearing is heard upon bill and answer.
[47]*47The act declares: “That no answer of any defendant, to any bill or petition to be hereafter filed in the courts of equity in this Stale, shall be evidence against the complainant or complainants, unless by the bill or petition, such answer shall be required to be made under the oath of the respondent or respondents; or unless at the hearing of the cause the complainants shall read the answer as evidence, in which case it shall have the same effect, as to the party reading the same, as if it had been required to be made under oath.”
Looking to the material difference, prior to this act, between the effect of an answer at final hearing upon bill and answer, and its effect when the cause is heard on bill, answer, replication and proof, and considering the evil which the act seems designed to remedy, we think it was not intended to apply to the former class of cases, but to the latter. In the former tbe answer in all points was admitted lo be true, because the complainant, if lie saw fit to do so, had the power to prevent a hearing on bill and answer. But in the latter, an answer, even when regularly denied and proof demanded, so far as responsive to the bill, was not only evidence for the defendant, but such evidence as could not ire overcome, unless by the testimony of two witnesses, or of one sustained by corroborating circumstances. And from the effect of this rule the complainant had no means of relieving himself. To afford him an opportunity of doing so, the act, in our opinion, was passed; and therefore has provided that an answer shall not be evidence if not required to bo made under oatli, and not read by tlie complainant as evidence at the hearing of the cause. As, therefore, whether the answer shall be evidence or not, is made to depend upon the course which the complainant may, at his discretion, think proper to pursue, it would seem to have been designed by the act to provide for the exercise of such a discretion, in reference to a hearing, at which, under the old practice, lie could not do so. But seeing that the plaintiff liad the power to prevent a cause from being brought to a hearing, on bill and answer, by adopting the means within Iris own control, there ivas no necessity whatever to change the effect of an answer at such hearing. And we think the [48]*48legislature intended to put it in the power of the complainant to get rid of what was supposed to be an improper advantage on the part of the defendant, under the old practice, by reason of the influence on the case which the answer had as evidence, even when regularly denied and proof required. But the complainant previously having the power of preventing a hearing upon bill and answer, there was no necessity to change the effect of an answer at such hearing,- and therefore, in the absence of any necessity for legislation on the subject, it is not reasonable to suppose it was designed by the act of 1852 to change a long and well established practice.
The reason assigned by the authorities why the hearing of a case on. bill and answer has been considered as admitting the truth of the answer, is, that because no replication being put in the complainant has not chosen to allow the opposite party an opportunity of furnishing proof in support of his defence, and’ consequently the answer should be conceded to be true. If, notwithstanding the late act, this rule is held to be still in force, a complainant will not be denied the benefit intended for him by the legislature, as by taking proper'steps he can require the answer to be proved, and then, if he has chosen not to call for the answer under oath, and has not thought proper to read it at the hearing, it will not be evjdence against him, but must be proved. He will therefore have the privilege of deciding for himself, whether the answer, at final hearing) shall or shall not be evidence of its truth. If, in the exercise of his discretion, he thinks proper to have the case heard upon bill and answer, he should be considered as virtually consenting that the answer is true in regard to all matters stated in it, which are susceptible of - proof, by legitimate evidence. How far the truth of an answer is admitted on such a hearing may be seen by reference to 2 Daniel’s Ch. Pl. & Pr., 966, (Ed. of 1846.) Story’s Eq. Pl., sec. 877. 1 Bl. Ch. Rep., 201, note. Ibid., 488. 3 Do., 409, 410. 3 Black. Com., 448. 7 John. Ch. Rep., 217. 5 Munford’s Rep., 72.
Whilst our interpretation of the act of 1852, will afford a complainant the relief which by it was evidently designed, [49]*49hiid imposes nothing upon him against which he cannot sufficiently protect himself by his discretionary power, a different construction of the act might work injustice to the defendant.
As the law stood prior to this late act, if by consent a case was set down for hearing on bill and answer, it operated as an agreement or understanding, that the answer should be considered as true in ail points; and we cannot suppose the legislature designed either to prevent the parties from so consenting to have a case heard or to change the effect of an answer at such a hearing.
What has been here said is not to be considered as intimating any opinion in reference to the act of 1853, ch. 344, except that we do not understand that act as having any effect upon this case.
After the second answer came in, the cause, by consent, on the 26th of July 1854, was set down for hearing on the following day. To the answer as amended a replication was entered on the 9th of August, but without permission to do so having been applied for or obtained from the court, or by consent of the defendant.
After a cause is set down for hearing upon bill, answer and exhibits, without any proof having been taken, the complainant lias no right to put in a replication until Ire obtains from the court, or by consent of the defendant, authority to do so.
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Eccleston J.,
delivered the opinion of this court.
The first ground urged by the appellant for a reversal of the decree of the circuit court is, that the judge erred in permitting the defendant to file his amended answer. But that being a matter of discretion is not subject to revision on appeal.
In Thomas vs. Doub, 1 Md. Rep., 324, an application by the defendant for permission to file an amended answer having been refused by the chancellor, it was held that such refusal could not be revised in this court, because it was the exercise of a discretionary power. If this be true in regard to refusing it must be equally so in reference to allowing the amendment. See also the act of 1854, ch. 230, which provides, that “it shall and may be lawful, upon application of either complainant or defendant to any court in this State, sitting as a court of equity, and- upon payment of such costs as the court may direct, to amend at any time before final decree, the bill, answer, pleas, demurrers, or any of the proceedings in any cause before the court, so as to bring the merits of the case in controversy fairly to trial.”
The answer as amended having been received by order of the court, the question is, what effect it should have upon the case; and in reference to this question we propose first to ascertain whether the act of 1852, ch. 133, has changed the practice in chancery as regards the effect of an answer, when a cause at final hearing is heard upon bill and answer.
[47]*47The act declares: “That no answer of any defendant, to any bill or petition to be hereafter filed in the courts of equity in this Stale, shall be evidence against the complainant or complainants, unless by the bill or petition, such answer shall be required to be made under the oath of the respondent or respondents; or unless at the hearing of the cause the complainants shall read the answer as evidence, in which case it shall have the same effect, as to the party reading the same, as if it had been required to be made under oath.”
Looking to the material difference, prior to this act, between the effect of an answer at final hearing upon bill and answer, and its effect when the cause is heard on bill, answer, replication and proof, and considering the evil which the act seems designed to remedy, we think it was not intended to apply to the former class of cases, but to the latter. In the former tbe answer in all points was admitted lo be true, because the complainant, if lie saw fit to do so, had the power to prevent a hearing on bill and answer. But in the latter, an answer, even when regularly denied and proof demanded, so far as responsive to the bill, was not only evidence for the defendant, but such evidence as could not ire overcome, unless by the testimony of two witnesses, or of one sustained by corroborating circumstances. And from the effect of this rule the complainant had no means of relieving himself. To afford him an opportunity of doing so, the act, in our opinion, was passed; and therefore has provided that an answer shall not be evidence if not required to bo made under oatli, and not read by tlie complainant as evidence at the hearing of the cause. As, therefore, whether the answer shall be evidence or not, is made to depend upon the course which the complainant may, at his discretion, think proper to pursue, it would seem to have been designed by the act to provide for the exercise of such a discretion, in reference to a hearing, at which, under the old practice, lie could not do so. But seeing that the plaintiff liad the power to prevent a cause from being brought to a hearing, on bill and answer, by adopting the means within Iris own control, there ivas no necessity whatever to change the effect of an answer at such hearing. And we think the [48]*48legislature intended to put it in the power of the complainant to get rid of what was supposed to be an improper advantage on the part of the defendant, under the old practice, by reason of the influence on the case which the answer had as evidence, even when regularly denied and proof required. But the complainant previously having the power of preventing a hearing upon bill and answer, there was no necessity to change the effect of an answer at such hearing,- and therefore, in the absence of any necessity for legislation on the subject, it is not reasonable to suppose it was designed by the act of 1852 to change a long and well established practice.
The reason assigned by the authorities why the hearing of a case on. bill and answer has been considered as admitting the truth of the answer, is, that because no replication being put in the complainant has not chosen to allow the opposite party an opportunity of furnishing proof in support of his defence, and’ consequently the answer should be conceded to be true. If, notwithstanding the late act, this rule is held to be still in force, a complainant will not be denied the benefit intended for him by the legislature, as by taking proper'steps he can require the answer to be proved, and then, if he has chosen not to call for the answer under oath, and has not thought proper to read it at the hearing, it will not be evjdence against him, but must be proved. He will therefore have the privilege of deciding for himself, whether the answer, at final hearing) shall or shall not be evidence of its truth. If, in the exercise of his discretion, he thinks proper to have the case heard upon bill and answer, he should be considered as virtually consenting that the answer is true in regard to all matters stated in it, which are susceptible of - proof, by legitimate evidence. How far the truth of an answer is admitted on such a hearing may be seen by reference to 2 Daniel’s Ch. Pl. & Pr., 966, (Ed. of 1846.) Story’s Eq. Pl., sec. 877. 1 Bl. Ch. Rep., 201, note. Ibid., 488. 3 Do., 409, 410. 3 Black. Com., 448. 7 John. Ch. Rep., 217. 5 Munford’s Rep., 72.
Whilst our interpretation of the act of 1852, will afford a complainant the relief which by it was evidently designed, [49]*49hiid imposes nothing upon him against which he cannot sufficiently protect himself by his discretionary power, a different construction of the act might work injustice to the defendant.
As the law stood prior to this late act, if by consent a case was set down for hearing on bill and answer, it operated as an agreement or understanding, that the answer should be considered as true in ail points; and we cannot suppose the legislature designed either to prevent the parties from so consenting to have a case heard or to change the effect of an answer at such a hearing.
What has been here said is not to be considered as intimating any opinion in reference to the act of 1853, ch. 344, except that we do not understand that act as having any effect upon this case.
After the second answer came in, the cause, by consent, on the 26th of July 1854, was set down for hearing on the following day. To the answer as amended a replication was entered on the 9th of August, but without permission to do so having been applied for or obtained from the court, or by consent of the defendant.
After a cause is set down for hearing upon bill, answer and exhibits, without any proof having been taken, the complainant lias no right to put in a replication until Ire obtains from the court, or by consent of the defendant, authority to do so. A different practice might subject a defendant to the danger of having his answer denied at any time before the decree; although in consequence of the cause being set down for hearing without a replication, and perhaps having been argued, or submitted without argument, he had good reason for believing his answer was admitted to be true, and therefore it was unnecessary for him to furnish evidence in support of his defence.
Upon an application to the judge to suffer an order setting down a cause for hearing to be withdrawn, for the purpose of allowing a replication to be put in, he will prescribe the terms on which it may be done, and will take care to give the defendant an opportunity to offer proof of the matters set forth in Iris answer. See Daniel’s Ch. Plea. & Pr., 1190.
A replication coming in after a cause has been set down for [50]*50hearing upon bill, answer and exhibits, makes a very material change in the condition of the case, and as the rights of the defendant are seriously affected thereby, his. consent, or an order of the court allowing such a change is necessary. Leave of the court, to authorise any material amendment of a bill or answer is required. Alex. Ch. Pr., 62, 110. And if a second answer is filed without leave it will be taken off the file. Thomas vs. Visitors of Frederick County School, 7 G. & J., 387. As this is true, why should not a complainant be required to obtain leave before he can file his replication, when the case is in the condition spoken of?
The record states that a replication to the amended answer was entered on the 9th of August 1854, by the complainant’s solicitors, but there is nothing to show that this was done, by consent -or by the authority of the court, upon an application for that purpose. And in deciding the cause it is evident the judge treated it as if there was no such replication. The decree commences by saying: “This cause standing ready for hearing and being submitted upon bill, answer and exhibits, to the undersigned specially appointed,” &c. And in dismissing the bill the judge evidently held the second answer, not only to. be properly in the cause, but admitted to be true and sufficient with the exhibits, without any other proof, to sustain the defence. See 5 Munf. Rep., 482, Pickett & Wife vs. Chilton.
Feeling ourselves bound to consider the second answer as regularly in the case, we cannot reverse the decision below, although the judge, under the circumstances in relation to the replication, treated the cause as if heard upon bill, answer and exhibits, and held the answer to be admitted as true, under the state of the pleadings. The answer, when so considered, establishes a purchase by the defendant, of the land in dispute, under a decree to sell the same for partition, in a cause where the present appellant, being then the wife of one of the joint owners of the property, was a co-complainant with her husband and others.
It is by no means certain, that, even prior to the act of 1839, ch. 23, a sale under such a decree for partition would [51]*51not bar a ‘“potential” or inchoate right of dower in the wife of one of the joint, owners of the land. JBut conceding that such a sale would not have barred her right to dower in the property, after her husband’s decease, if the sale had taken place before this act, there can be no doubt, that under like circumstances, occurring' since the year 1839, she cannot demand dower of the purchaser, inasmuch as the act referred to provides, that a decree may be passed directing a sale of land or real estate held jointly, or in common by two or more persons; and tiiat a sale under such a decree shall pass to the purchaser all the interest and estate of ail persons who axe parties to the suit, either complainants or defendants; and also further provides, that “if any feme covert, by marriage with one of the joint tenants or tenants in common, shall have acquired a potential right of dower in part of the estate to be sold, such right of dower is hereby expressly declared to be within the power of the court or judge to decree the sale, she being made a party to the proceedings, either complainant or defendant.”
This was a purchase under a decree in a case, where the act of 1839, had conferred express authority, on the court to sell -the inchoate dower right of such a party as the present plaintiff then was; and there is no proof before us, or even anjr allegation contained in the record, that in the former case she was made a party complainant without her consent or knowledge, or that any undue advantage was taken of her, unless it should be inferred from the mere fact that there was nothing in the record- of that suit to show she consented to be made a party, except that she was named as a complainant in the bill.
Property purchased by the defendant under such a decree to sell for partition, we think is not subject to the plaintiff’s claim for dower. When the sale was made and ratified any inchoate or possible dower right of Mrs. Warren in the land, to which she may previously have been entitled, was transferred to the proceeds of sale, out of which the court had full power to provide for any legitimate claim on accouut of dower. And if the proceeds were not correctly distributed by the court the purchaser could not be held responsible for an error of that kind.
[52]*52The courts have manifested an unwillingness to interfere with the rights of purchasers claiming title under a judgment or decree, even where such judgment or decree may not have been based upon proceedings wholly regular. See Baker & others vs. Morgans, 2 Dow's Rep., 526, and Bennett vs. Hamill, 2 Sch. & Lef., 577.
The views expressed in this opinion we deem sufficient to justify an affirmance of the decision below, for which purpose ft decree will be signed giving costs tq the appellee.
Decree affirmed.