Porter v. Nelson's Exrs.

Opinion,

Mr. Justice Clark:

The bond out of which this controversy arises was executed by Samuel P. Nelson, 24 June, 1855; judgment was entered upon it in favor of William Porter, guardian, etc., 29 March, 1860; Robert McCall Nelson having arrived at the age of twenty-one years, it was assigned to him by his guardian on 15 March, 1865, and this scire facias was issued 1 February, 1886. The rule of law which presumes payment of all debts by specialty, etc., unclaimed and without recognition for twenty years plainly applies, therefore, unless the facts and circumstances established by the evidence are sufficient to repel or rebut that presumption. Whether this is so or not, as we said in Gregory v. Commonwealth, a case from the Middle District, argued at this term and not yet reported [ante, 611], is a question for the court. This presumption is very strong and is favored in law as tending to the repose of society and the discouragement of stale claims: Kline v. Kline, 20 Pa. 503. The testimony must therefore be of a satisfactory and convincing character: Peters’s Appeal, 106 Pa. 340; Eby v. Eby, 5 Pa. 435; Sellers v. Holman, 20 Pa. 324. As we said in Gregory v. Commonwealth, it must, according to the cases, carry conviction to the mind of the court that, if the facts alleged are true, the matters in issue are definitely and distinctly established. In a case like this the defendant relies upon a presumption of law which is binding alike upon the court and jury until invalidated by proof, and the plaintiff 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.

The evidence may consist of the defendant’s admissions made • to the creditor, his agent, or even to a stranger, but an admission of the existence of the debt will not be as readily implied from language casually addressed to a stranger as when addressed to the creditor in reply to a demand for the debt: Bentley’s Appeal, 99 Pa. 500; Gregory v. Commonwealth, supra. As we said in the case last cited, the facts and circumstances relied on to rebut the presumption must necessarily exist within twenty years before suit brought, and, as the recollection of the exact words and import of an oral admission must 'necessarily become more indistinct with the lapse of years, the force of such an admission will in general be lessened as the time from its occurrence increases. But on the other hand, after twenty years the presumption will gather strength with each succeeding year and the evidence to overthrow it will be correspondingly increased.

At the bringing of this suit, thirty years and more had elapsed from the date of the bond; twenty-five years from the entry of the judgment upon it, and twenty-one years from the assignment to the present plaintiff. It may be said that the plaintiff was a minor and the suit was brought within twenty-one years after his minority; that he was a single man and lived with his father; yet no claim appears to have been made for six years after he was married and until two years after his father’s death. No claim appears at any time to have been made by the plaintiff against Samuel P. Nelson, in his lifetime; and after his death, and after this great lapse of time, it is certainly not unreasonable that the plaintiff shall be held to clear proof of the facts relied upon to defeat the presumption that it has been paid. Especially is this so in view of the strong corroborating fact that tbe original bond, after tbe death of Samuel P. Nelson, was found in the debtor’s possession, among the papers which came into the hands of the executors of his will.

The first assignment of error is to that portion of the general charge in which the learned judge instructed the jury that where an obligation for the payment of money is found among the papers or in the possession of the obligor, he is presumed to have obtained it by payment. As a general principle this is undoubtedly true; it is but a presumption of fact, however, and would stand only until proof was given to the contrary. The bond was the original evidence of the indebtedness; it was the only authority that the plaintiff had for entering judgment, and the presumption is that he would not surrender it until he had received satisfaction. The presumption in a scire facias on the judgment may perhaps be slight, but the possession of the bond was certainly presumptive evidence of payment ; it was a fact in support and corroboration of the strong presumption arising from lapse of time; and, as the rebuttal of the latter in any event called for satisfactory and convincing proof of non-payment, we cannot see that the particular instruction complained of, even if erroneous, could have done the plaintiff any harm, for the proof which would sufficiently repel the stronger would certainly rebut the weaker.

The court instructed the jury that if the plaintiff’s case rested solely on the admissions made to William Nelson and Robert Livingston, he could not regard them as sufficient to rebut the presumption of payment, but that these admissions taken with the other facts and circumstances in the case were sufficient, if believed, for the purpose stated. “If the case stood alone,” says the learned judge, “ on the conversations had with the witnesses William Nelson and Robert Livingston, I would deem them insufficient to rebut the presumption of payment. But in addition to that it is shown that the plaintiff, the son of the defendant, lived in his family until his marriage, and then lived as a tenant on his farm up till the time of his death. These are circumstances offered in this case, as tending to explain the delay of the plaintiff and his failure to demand the money of his father in his lifetime, proper to be considered in determining the question whether this bond has been paid.” In view of tbe extraordinary length of time which had elapsed before this suit was brought, and of the fact that the bond was found to have been in the debtor's hands at his death, the court was not far wrong perhaps in saying that excluding the explanatory evidence of the kinship and family relation existing between the parties, the testimony of Nelson and Livingston, taken alone, would not be regarded as sufficient, for Nelson’s testimony was too vague to have any effect, and Livingston’s was but the recital of a casual conversation with a stranger, occurring seven years or more prior to the suit; but this portion of the charge was at all events a mere hypothesis and was so expressed, for the relation of father and son and the family relation were admitted, and the testimony of Nelson and Livingston was of course stronger when viewed in the light of these circumstances. The case was submitted to the jury on all the evidence taken together: the language of the learned judge is as follows: “ The testimony, its weight, the credibility of the witnesses, the correctness of their testimony are all questions for you.....Now the case largely depends upon the credibility to be attached to the testimony of the witnesses, and that is to be determined from their manner of testifying and the probability or improbability of what they have testified to, and those questions of the probability, of their credibility, and of the weight to be attached to the oral testimony of the witnesses are questions entirely for the jury.”

According to the letter of the act of May 28,1887, P. L. 158, Maria Theresa Floyd and Frances A. Nelson were competent witnesses to establish any fact, whether occurring before or after the death of Samuel P. Nelson. Whether the act of 1887, which in this respect would seem to be a departure from the settled principles of the act of 1869, is to be construed according to the letter, is a question we are not called upon to decide; however, these witnesses were not offered to establish ■any matter occurring before the death of Samuel P. Nelson. They were called to show that about thirty days after the decedent’s death, in a search then being made for a draft of the testator’s lands, the bond was found among the plaintiff’s papers. It is of no consequence that this testimony might tend to prove, inferentially, that tbe same fact existed prior to his death: Rothrock v. Gallaher, 91 Pa. 108; Stephens v. Cotterell, 99 Pa. 188. Their testimony did not, as in Foster v. Collner, 107 Pa. 805, and Adams v. Edwards, 115 Pa. 211, necessarily relate to a fact which existed or took place in the testator’s lifetime. Independently, however, of the implication or inference which might he drawn as to facts existing,in the testator’s lifetime, the testimony was clearly competent to show the acts and declarations of the plaintiff when the bond was thus discovered. We are clearly of opinion that the learned judge of the court below was right in his rulings in the case, and

The judgment is affirmed.