Levers v. Van Buskirk , 7 Watts & Serg. 70 ( 1844 )

The opinion of the Court was delivered by

Sergeant, J.

This was an ejectment brought inf 1841 by the mortgagee to recover part of certain lands mortgaged in 1810, alleging that a balance was due on the last payment of $2000, which was to have been made pursuant to the bond on the 27th May 1814. After giving ins evidence the mortgage and bond and deed to the mortgagor by the mortgagee, the plaintiffs offered in evidence various proceedings to rebut the presumption of payment arising from the lapse of more than 20 years since the time when the money was due and payable on the bond in question. And we think that with the exception of the last item, the evidence was admissible for the purpose of rebutting the presumption of payment arising from lapse of time, ,as it tended to show a prosecution of his claim by the plaintiff, within the 20 years preceding the institution of the present suit. The doctrine on this head was fully considered in the case of Foulk v. Brown, (2 Watts 215), and it is there held that slighter circumstances are sufficient to rebut the presumption than are required to take the case out of the Statute of Limitations; the latter being a positive enactment of the Legislature, the former merely an inference on which legal belief is founded. The party’s ignorance of his rights—his disability to sue during a portion of the time, Owing to the prevalence of a war, and it is said a writ sued out against the party really liable though not arrested, or an imperfect writ if the party were arrested—absence from the country—a demand without suit, and generally any circumstance explaining satisfactorily why an earlier demand has not been made.

Here the evidence offered went to show an ejectment instituted by the plaintiffs’ ancestor in 1821 to recover a portion of the lands mortgaged, an agreement to refer all matters in variance between the parties, a claim for the balance of the mortgage, and an award for a sum of money and judgment thereon; a scire facias issued on this judgment and revival to April term 1829; alias scire facias to January term 1834 against the mortgagor and heirs and terre-tenants, with a conditional verdict. These certainly show a claim on the mortgage, and that persisted in, though it would seem by mixed and Imperfect proceedings, and such probably as the plaintiffs could not reap the benefit of, though they may have had the right; and they therefore oúght to go to the jury as evidence to repel the presumption of payment arising from the mere lapse of time, and to show a claim and demand of the money on the mortgage. It is no objection that the original ejectment and proceedings mentioned are against Horn alone. He was the mortgagor; the defendants bought after his mortgage was given and recorded; they therefore took their lands subject to it, and were in privity of estate with the mortgagor.

As to the ejectment in 1817, that was more than 20 years before the present suit, and it does not appear how it could have any operation to rebut the presumption arising from the lapse of 20 years last preceding. We think that was not evidence, but the others were.

Judgment reversed, and venire facias de novo awarded.