
    J. W. Campbell v. T. S. Heflin.
    (No. 6366.)
    Appeal from Caldwell County.
    Thomas McNeal, counsel for appellant.
    Stringfellow & Wilson and P. J. Greenwood, counsel for appellee.
   Opinion by

White, P. J.

§ 90. Landlord and tenant; estoppel; answer setting up held sufficient. This was a suit by Heflin against Campbell, as administrator of one Hendry, for $280, it being for fourteen months’ rent of a store-house at $20 per month. Appellant pleaded general denial, and specially, in substance, that Hendry had rented the house from one Munster, who had long been the owner of the lot on which the house was built; that he, Munster, built said, house, and had possession and control of the same; that while he, Munster, had executed a deed to the lot to appellee, Heflin, the said deed was but a mortgage, and Munster was to repay Heflin his money loaned upon the same at the rate of $30 per month; that Hen-dry paid his rents regularly as they fell due to said Munster, and that Heflin knew the facts, lived in the same town, made no objections, acquiesced in the situation, and never claimed any rents of Hendry, and only asserted this claim after Hendry died and Munster had become insolvent. On general demurrer of plaintiff this special answer of defendant was stricken out, and defendant refused to amend. We are of opinion that the answer was legitimate, and that it set up a good defense to plaintiff’s suit. It was therefore error for the court to sustain the demurrer to and strike out the said answer.

April 23, 1890.

Reversed and remanded.  