Hess v. Frankenfield , 1884 Pa. LEXIS 213 ( 1884 )

Mr. Justice Green

delivered the opinion of the court,

The only question in this case is whether it should have been determined by the court or the jury. The court decided it by directing a verdict for the plaintiff. The question was one of payment. The claim was a scire facias to revive a judgment entered more than nineteen years before the writ issued. The judgment was entered by Addison J. Hess against himself and in favor of his wife on October 1, 1863, upon a note for 83000 dated April 3, 1860, but really executed shortly before the judgment was entered. The wife died in January, 1870, and her husband, the defendant in the judgment, in November 1882. After his death letters of administration upon the wife’s estate were taken out by her son-in-law Tobias G. Frankenfield and it is he who issued the present writ of scire facias.

It was contended on the trial that the great lapse of time coupled with the other facts and circumstances in evidence authorized a presumption of payment, but the learned court below without delivering any opinion or charge directed the jury peremptorily to return a verdict for the plaintiff for the whole amount of the judgment with interest from its date to the day of the verdict. In this we think there was error.

In the recent case of Peters’s Appeal (ante, ¡o. 341), our brother Paxson, delivering the opinion of the court, said— After a lapse of twenty years mortgages, judgments, and all evidences of debt are presumed to be paid: Foulk v. Brown, 2 Watts, 209: and a recognizance in the Orphans’ Court: Beale v. Kirk, 8 Norris, 415: and in less than twenty years with circumstances payment may be presumed: Hughes v. Hughes, 4 P. F. S., 240; Brigg’s Appeal, 12 Norris, 485. After twenty years the law presumes that every debt is paid, no matter how solemn the instrument may be by which such debt is evidenced, and such presumption stands until rebutted.” In Moore v. Smith, 31 P. F. S. 182, we said “ a legal presumption of payment does not indeed arise short of twenty years, yet it has been often held that a less period with persuasive circumstances tending to support it may be submitted to the jury as ground for a presumption of fact.” In Henderson v. Lewis, 9 S. & R. on page 384, Gibsost, J., said: “ When less than twenty years has intervened, no legal presumption arises; and the case not being within the rule, is determined on all circumstances, among which the actual lapse of time, as it is of a greater or less extent, will have a greater or less operation.” In this case a period between sixteen and seventeen years had elapsed and was held sufficient with proper circumstances. The same doctrine was stated in Hughes v. Hughes, 4 P. F. S., 240, and Thompson J., added to the statement — “slight circumstances may be given in evidence for that purpose in proportion as the presumption strengthens by lapse of time.” In Diamond v. Tobias, 2 Jones, 312, Coulter, J., said “ The rule is well established that where the period is short of twenty years the presumption of payment must be aided by other circumstances beside the mere lapse of time. But exactly what these circumstances may be, never has been and never will be defined by the law. There must be some circumstances ; and where there are any, it is safe to leave them to the jury.” In Brigg’s Appeal, 12 Norr., on p. 488 Mr. Justice Sterett says — “ While the general rule undoubtedly is that the presumption does not arise until twenty years have elapsed, it is well settled that a shorter period than that, aided by circumstances which contribute to strengthen such presumption, may furnish sufficient grounds for inferring the fact of payment.”

The question of payment is a question of fact, and therefore its proper determination is within the province of the jury. In a given case, if there are no circumstances tending to aid the presumption of payment, and the presumption does not arise for want of the necessary time, it would be the duty of the court to so instruct the jury and withdraw it from their consideration. But in this case, it seems to us, there were circumstances, some of them of a highly persuasive character, which tended to support the presumption, and therefore it became the duty of the court to submit the whole of them, including the lapse of time, to the determination of the jury. It was proven that the only persons entitled to the estate of Mrs. Hannah Hess, the plaintiff in the judgment, were her husband, the defendant, and her daughter by a former marriage, Mrs. Tobias Gr. Frankenfield. Mrs. Hess having died in 1870, her husband was entitled to the exclusive administration of her estate, and to take one half of all her personal estate, including this judgment. But as no one else but her 'daughter was entitled to the other half, there would be no necessity for administration unless there were debts, of which there is no evidence, and, speaking from this lapse of time, no probability. It was entirely competent, therefore, for her husband and her daughter to divide her personal estate without administration if they saw fit to do so. In point of fact, the daughter, Mrs. Frankenfield, and her step-father, the defendant in the judgment, did have a settlement on March 28, 1871, in which she gave him several receipts, one of which was as follows: “ Received, March 28, 1871, of Addison J. Hess, my full outset, as agreed between us, and I hereby release the said Addison J. Hess from all claims which I may or might have against him for services rendered previous to March 28, 1871, and for any demand for or on account of the money or estate of my mother, deceased, or my father, deceased, other than a bond of $1000, elated March 28, 1871, given by the said Addison J. Hess to me, Amanda M. Frankeniield, and also a certain judgment note of $914.15, dated March 28, 1871, given by him to me.”

It is not necessary now to decide whether this paper was conclusive upon Mrs. Frankenfield, as a paper which it was competent for her to execute under the power conferred by the Act of April 11, 1856, authorizing married women to execute refunding bonds and other instruments in discharge of legacies and distributive shares, as that question is not before us. But wo are very clear that the fact of Mrs. Frankenfield’s giving this release was a persuasive fact in support of the presumption of payment of the judgment in this ease, and as such was for the determination of the jury and not of the court. Seven years had already transpired from the entry of the judgment without any demand being made by the wife for its payment, so far as the evidence goes, and at the time of the trial twelve years more had elapsed, during all of which it was competent for Mrs. Frankenfield to make claim for the money from her step-fatlior, and to have administration granted upon her mother’s estate if pajnnent was refused, and yet there is no proof that any such demand was made. While It is true she had no claim during the first seven years, yet that length of time was an important periftd in the age of the judgment, which ought to have prompted her to action when her right did attach. It is certainly not proper for a court to say that when a paper of this character is given by a person so circumstanced, it is to have no weight, and is of no consequence in the case, and must therefore be disregarded by the jury. That is a matter for the jury alone to determine in connection with the other facts in the ease. The mere giving of such a paper is corroborative of the presumption from lapse of time increasing in force as time goes on. • • '

Again, it was competent for the husband, at any time after his wife’s death, to take out administration upon her estate, and, as administrator, to enter satisfaction upon the judgment, being liable, of course, to account for its value in the settlement of his administration account. Does the fact that he did not do this add to the force of the presumption or detract’ from it? This also is for the jury. It does not appear that Mrs. Frankenfield or her husband ever demanded any interest or any part of the principal during the twelve years (almost) following the giving of the receipt. Is or is not this a fact in aid of the presumption ? She did settle with him for other claims in 1871, and again in 1872, as she had previously settled with him in 1865 as her guardian, why did she not settle this? In fact, did she not settle this when she gave the release of March 28, 1871 ? All these are matters for the jury, not for the court. So far as the mere language of the paper is concerned, which is for the court, it declares that she does release him from any demand on account of the money or estate of her mother. If it is not to have this effect, it must be by force of other facts which prevent it, and those also are, or may be, for the jury. There are other facts, such as the consideration of the judgment, the circumstances in which, and the purpose for which it was given, which may be of importance in the decision of the case. We think all these matters are for the jury, and therefore that the court was in error in taking the entire case from them.

Judgment reversed, and venire de novo awarded.