Herndon's ex'ors v. Bartlett's ex'or , 23 Ky. 449 ( 1828 )

Judge Owslex

delivered the opinion of the court.

The executors of Herndon sued the executor of Bartlett, by warrant before a Justice of the peace, and recovered judgment for twenty nine dollars and fifty nine cents, besides interest and cost.

The executor of Bartlett appealed to the circuit court, and a jury being there dispensed with, and, by agreement of the parties, both law and facts submit-ed to the determination of the court, judgment was rendered in favor of the executor of Bartlett.

To reverse thatjudgment the executors of Hernden have prosecuted this writ of error.

The object of Herndon’s executors in bringing their warrant before the justice, was to recover of the estate of Bartlett the amount of a' judgment, which they claim to have been rendered against him in their favor by one of the district courts of the State of Virginia, at the May term, 1806. On the trial in the circuit court, the executor of Bartlett denied that any such judgment had been rendered against his testator; but if it had, he contended that the amount thereof had been paid, and relied upon lapse of time as evidence of the payment.

The whole evidence introduced on the trial, was spread upon the record, by hill of exceptions.

The transcript of the record from the district court of Virginia, is conclusive evidence that judgment was rendered by that court, in favor of the executors of Herndon, against the testator, Bartlett. The judgment purports to be against the plaintiff in court, without naming him; and by the transcript of the record, the action seems to have been brought by, and prosecuted in the name of, the testator, Bartlett, attorney in fact for John White; s.o that Bartlett, and not White, must be understood to be the person against whom the judgment was rendered by the court.

Lapse of time iess than 20 years, may or not, be sufficient evidence ofpayment. . Effect of the fact, that an execution had issued on the judgment and never returned; ofthe removal of the defendant, and non-residence of the plaintiff;- and statement of defendant, in support, and against the presumption of payment from lapse of time.

The main question relates to the lapse of time between .the judgment by the court of Virginia, and. the suing out the warrant in this case from the justice.

The warrant is dated the 17th of November, 1825; and the judgment was rendered by the court of Virginia, in May, 1806; so that there was not twenty years between the rendition of the judgment and the date of the warrant. But from the transcript of the record, which was certified by the clerk of the court of Virginia, in 1818, it appears that an execution issued upon the judgment, in favor of Herndon’s executors, as long ago as the 28th of June, 1806, and that it has néver been returned to his office; and although full twenty years had not run between the judgment and the date of the warrant, it is contended on the part of the executor of Bartlett, that from the fact of an execution having issued, and not being returned in connexion with the lapse of time which, actually run, payment of the judgment was correctly presumed by the circuit court. We, however, under all the circumstances proved on the trial, think differently. We would not be understood to say, that no circumstances can, in connexion with the lapse of less than 20 years, warrant a presumption of payment; but it is intended to say, that the circumstance relied on by the executor of Bartlett, and to which we have adverted, is insufficient, wlien considered in connexion with other evidence contained in the record, to authorize the conclusion that the judgment has been paid.

If, at the date of the execution which issued from the office of the court of Virginia, Bartlett had resí-. ded in that'state, or had property there; the fact of the execution having issued, might be plausibly urged as a strong circumstance in support of the presumption of payment. But it was proved,or admitted, by the parties, that before the.judgment was rendered by the court of Virginia, Bartlett resided, and continued to reside until his death, in this state; and there was no evidence introduced conducing to prove, that after he left the state of Virginia, Bartlett ever had any property there, which could have,been reached by execution. And not only so, but it moreover appears from the record, that the executors of Herndon have at all times been non-residents of this state; and that about two or three years before the date of the warrant, the record of the suit in Virginia' was presented to Bartlett, and payment demanded; and. without even alleging that he had paid the- judgment, he replied that he would take the advice of counsel; and after having done so, said he was advised that he was not bound to pay it. These circumstances, we think, go not only to repel any favorable inference which might otherwise have been drawn from the issuing of the execution, but they also go to weaken the effect of the lapse of time between the judgment and the date of the warrant.. For although, as a genera] rule, after the lapse of twenty years, either a debt due by bond or judgment will be presumed paid, the presumption is but a presumption of fact, and may be repelled by proof of any incompatible facts. Accordingly, it is said,, that the presumption does not arise, where the obligor has resided abroad during the whole of the. timet 2 Starkie’s Evi. 309. See also the case of Reardon vs. Searcy’s heirs, 3 Marsh. 544.

Act of Virginia limiting the action on a judgment to. 10 years,does= not apply ■where the defendant removed from the state before the judgment was recovered; the proviso of the. saohcasos?3

We have thus far been considering the case upon-general principles, applicable to presumption of payment from lapse o-f time, and according to those principles we feel constrained to say, that upon the evidence contained in the record, no presumption of payment can be fairly inferred. .

But the judgment was rendered in the state of Virginia,, and as that state has a statute limiting the time for suing upon judgments to ten years, it may be contended, that under the constitution and laws of the United States, no greater effect should be given in this state to the judgment, than would be given to it in Virginia; and that after the lapse of ten years from the judgment, the executors of Herndon should not be permitted to recover in an action on the judgment in this state.

Without, however, going into the question, whe* ther or not tbe constitution and laws of tbe United States should be construed to have any application to. the acts of limitations, which any state may adopt as to the time in which judgments may be enforced, is a sufficient answer to the argument, that the Virginia act of limitation to which the argument «Uudes, contains a saving as to persons against whom judgments are rendered, removing from that state; and we have seen, that Bartlett had removed from the state before judgment was rendered against him; so that his executors can derive no benefit from that act, even were it admitted to have any influence in this state, over actions brought here upon judgments of that state, as was decided by this court in the case of Thompson vs. Cobb: 1 Marsh. 507.

Judgment, Sssenfang106

A majority of the court, the chief justice dissenting, are of opinion, that judgment should have been rendered in favor of the executors of Herndon. The judgment must be reversed with cost, the causo remanded to the court below, and judgment there entered for the amount of the Virginia judgment and cost.