Estate of Devereux

Opinion by

Mb. Justice Fell,

The legal presumption of payment arising from the lapse of twenty years in the case of a bond or specialty does nothing more than shift the burden of proof. “ Within twenty years the law presumes that the debt has remained unpaid, and throws the burden of proving payment upon the debtor. _ After twenty years the creditor is bound to show, by something more than his bond, that the debt has not been paid, and this he may do because the presumption raises only a prima facie case against him. It must be borne in mind that the presumption from lapse of time is not that there is no contract existing between the parties. If it were, proof of a new contract might be necessary. It is only an inference that the debtor has done something to discharge the debt, to wit: that he has made payment: ” Reed v. Reed, 46 Pa. 239. While the evidence to overcome the presumption must be of a satisfactory and convincing character, the same precision of proof is not required as is required to remove the bar of the statute of limitations : Gregory’s Exrs. v. Com., 121 Pa. 611. Each case must necessarily be determined on its own peculiar facts, and in each the question is whether the presumption of law that the debt has been paid is overcome by proof of facts and circumstances which tend to show that it has not been paid. The complete legal presumption does not arise short of twenty years, but a shorter period aided by circumstances which contribute to strengthen the presumption may furnish ground for inferring the fact of payment. The ability of the obligor to pay and the pressing need of the obligee for money have been recognized as circumstances which aid the presumption of payment: Hughes v. Hughes, 54 Pa. 240. On the other hand it was held in Tilghmau v. Fisher, 9 Watts, 441, that one of the intervening circumstances which may rebut the presumption is the inability of the debtor to pay within twenty years, and proof of a continued inability to pay was recognized in Taylor v. Megargee, 2 Pa. 225, as sufficient to rebut the presumption. There are convincing reasons for the ruling that proof of the insolvency of the debtor alone will not rebut the presumption. An insolvent may bo possessed of property or be in receipt of an income, and have the means of payment; but proof of positive inability to pay is in effect proof that payment could not have been made.

The judgment in this case was for $31,377.64, and was entered in 1875. The decedent died in 1878. Before 1875 he had become involved by reason of indorsements for a large amount, and had lost all his property except a farm which was incumbered for its full value, the house in which he lived which was mortgaged for nearly its value, and personal property found to be worth less than $200. His dwelling was in bad repair, owing to 1ns want of means, and he was obliged to borrow money from his children to pay the interest on his mortgages. After 1875 he was out of business; he earned nothing and was in receipt of no income. It is as clear as testimony can make it that after the date of the judgment he was absolutely without means to pay any part of it. This conclusion does not rest on the testimony of those who had no real knowledge of his affairs, and could only guess that he had not paid because he did not appear to have the means to pay, but on the testimony of his counsel and of members of his family who knew his circumstances and contributed to his support. After his death there was no estate from which payment could have been made. The only assets which came into the hands of his administrator were two shares of stock worth $15.00, and four years after his death, a dividend from an assigned estate of $632, which was applied to the payment of interest on the mortgage on his dwelling house. The sum now in controversy was received by the administrator in 1896 on the termination of the life estate of the decedent’s mother.

The decree is affirmed at the cost of the appellant.