Jackson v. Nason , 38 Me. 85 ( 1854 )

Rice, J.

■ — The judgment which the plaintiff now seeks to revive, in part, was recovered in April, 1826, and satisfied by levy (the part sought to be revived,) in May, 1826.

In defence, payment and the statute of limitations, are relied upon.

After the expiration of twenty years, by the provisions of § 25, c. 146, payment or satisfaction of a judgment shall be presumed. But this presumption may be repelled; it is not conclusive. Brewer v. Thomes, 28 Maine, 81.

For the purpose of repelling the presumption of payment, evidence has been introduced tending to show, that Thompson and Kelsey, who, with the defendant, were original judgment debtors, have been poor and insolvent from 1825, up to the time of their decease, within two or three years. There is, however, nothing in the case, except the failure of his firm, in 1825, tending to show what have been the circumstances of the defendant since that time. But from this circumstance, without other evidence, the law does not raise the presumption that he has continued poor and insolvent to the present time. There are no admissions from either of the original debtors, inconsistent with the legal presumption of payment.

The copies of deeds in the case are not legally admissible. Hutchinson v. Chadbourn, 35 Maine, 189; Doe v. Scribner, 36 Maine, 168.

There is therefore, no legal evidence in the case, that Bowley, Thompson and Hilt, or the Butlers ever had any title to the land originating in Barrett. Nor does it appear, by legal proof, that the title was not in Thompson, senior, at the time of the levy. The nonsuit of the plaintiff in his action is against Butler and Hilt not so connected by competent evidence with this levy, as to give it any binding force.

Thus the plaintiff failing to invalidate the levy, its introduction established what the law would otherwise have presumed from lapse of time; to wit, the fact that the judgment had been satisfied. The plaintiff failing to ■ show either that the levy was invalid, or to overcome the presumption of payment, a nonsuit must be entered.

Shepley, C. J., and Tenney, Appleton and Cutting, J. J., concurred.