Richards v. Walp , 221 Pa. 412 ( 1908 )

Opinion by

Mr. Justice Fell,

The question raised by this appeal is whether the proofs presented at the trial were sufficient to rebut the presumption of payment arising from the lapse of time. The proceeding was on a mortgage to collect two installments of purchase money of $933.33 each, one clue in 1876 and the other in 1877. The mortgage also secured the payment of $1,000 on the death of a widow who had a dower interest, but who was living when the scire facias issued in 1903.

The testimony relied upon to rebut the presumption of payment was that in 1886 the mortgagor, after the death of the mortgagee intestate, leaving a husband and nine children surviving her, asked her son-in-law to aid him in getting her heirs “ to sign off the back money due on the mortgage,” and had offered to pay the heirs sums of money amounting to $600, and was told that they could not sign off because they were not of age. The learned trial judge regarded this testimony as insufficient to show that the installments of $933.33 each were not paid at that time, since all that was said would apply as well to the $1,000 which ivas then unpaid, and a nonsuit was entered.

The debt sought to be recovered was due and demandable twenty-six years before suit was brought. The presumption of payment arose at the end of twenty years, and it had increased in strength each succeeding year afterwards. The burden of overcoming it was upon the plaintiff, and the sufficiency of the evidence offered was for the court: Reed v. Reed, 46 Pa. 239 ; Beale’s Executor v. Kirk, 84 Pa. 415. “In a case like this the defendant stands upon a presumption of law, which is binding alike upon the court and jury until invalidated by proof, and the plaintiff in rebuttal upon a presumption of fact only, which he claims to arise out of the evidence ; whether or not the matters sought to be established are true is a question for the jury, but whether the facts and circumstances relied on, if true, would legitimately give rise to the presumption of fact referred to, is necessarily a question of law for the court: ” Gregory v. Com., 121 Pa. 611. This presumption is equal to direct proof of payment: Sellers v. Holman, 20 Pa. 321, and it will prevail until overcome by direct proof of nonpayment or the proof of facts and circumstances from which nonpayment may be clearly inferred.

The plaintiff’s testimony did not come up to this standard. The conversation testified to was seventeen years before suit brought or a demand of payment made. The mortgagor lived on the farm for twenty years, and the mortgagee and her chil-' dren lived in the same neighborhood, and no reason was shown that would account for a postponement of payment. The conversation itself had greater application to the $1,000 secured by the mortgage than to the installments, because the amount of the proposed payment was near the value of the present interest of the mortgagee’s heirs in the sum to be paid after the death of the widow who had a dower interest.

The judgment is affirmed.