Van Loon v. Smith

Mr. Justice Clabk

delivered the opinion of the court,

After a lapse of twenty- years from maturity, a bond is legally presumed to be paid; the presumption is of fact, not a legal liar; it is not conclusive but prima facie, only, and casts upon the party alleging the debt the burden of countervailing proof : Diemer v. Sechrist, 1 P. & W. 419; Backestoss v. Commonwealth, 8 Watts 286; Cope v. Humphreys, 14 S. & K. 15; Silverthorn v. Townsend, 37 Penn. St. 263; In re Fulton’s Estate, 1 P. F. S. 204.

The same rule prevails in judgments, mortgages, recognizances, and indeed in every species of security for payment of money. The presumption does not deny or impugn the record, but simply affords prima facie proof of payment of the debt secured by it. The rule arises from public policy and by substituting itself as presumptive evidence of payment, the burden is shifted upon the party in default: Cope v. Humphreys, supra; Summerville v. Holliday, 1 Watts 507; Tricket on Liens, vol. 1, sec. 229; Vitry v. Dauci, 3 Rawle 9; Commonwealth v. Rogers, Brightly’s R. 450.

The judgment in suit was entered on the 13th day of August 1855, for debt, §1,295.75 with interest thereon and costs of suit. This scire facias to revive judgment, continue lien, &c., was issued 17th July 1869, the service of the writ having been duly accepted, the pleas “ nul tiel record and payment with leave, &e.” were entered on the 19th November 1869. No further proceedings were had until 11th January 1882, when the cause was brought to trial. A period of twenty-six years from the entry of the judgment, and twenty-one years from the scire facias thereon, had elapsed before the trial; the delay to prosecute the claim for this great length of time, was not accounted for, nor any evidence given, of any fact or circumstance, by which this forbearance could be explained. The plaintiff at the trial of this scire facias offered in evidence the record of the judgment unsupported and alone, and the court holding this to be sufficient, instructed the jury to find for the plaintiff.

The presumption of payment arising from lapse of time is a general one, and applies not only between the plaintiff in the judgment and intervening creditors of the defendant and purchasers from him, but between the plaintiff and the defendant themselves. It affords, in ¿.he absence of countervailing proof, an adequate and sufficient defence, to the claim under the scire facias, and tve think the learned court below erred in holding otherwise.

Nor do we regard the issue and pendency of the suit upon the scire facias, after this lapse of time, as affecting the application of the rule. It is quite true that the defendants appeared to the scire facias, entered their pleas and formally took defence, and that at any time within the twenty-one years since elapsed, might have ordered the cause for trial; but the plaintiff enters the suit, he is the actor, it is his duty to prosecute, the defendants’ duty to defend. The scire facias at the date of its issue was an assertion of the debt on the part'of the plaintiff, but the plea of payment was an undoubted denial of it, on the part of the defendant, and that denial was in the direct line of the presumption which afterwards arose. The scire facias was issued to revive the judgment and continue the lien, the defendant, inter alia, pleaded payment, and in the face of this plea the plaintiff not only failed to revive the judgment, within the five years allowed by law, but suffered the judgment to lose its lien altogether, and twenty-one years to elapse without any effort or act of his, in further assertion of his claim.

Under these circumstances the scire facias is rather in support of the presumption than otherwise, for it appeared to have been abandoned, and that, too, when the defendant had interposed a plea of payment.

• But the presumption of payment arising from lapse of time may be rebutted by circumstances by evidence tending to show non-payment of the debt, or sufficiently accounting for the delay of the creditor, or showing a continued course of legal proceedings, conducted bona fide, to compel payment, and all the testimony bearing upon this point is for submission to the jury as a question of fact to determine as to actual paymeut.

As a corollary to this it follows that testimony is admissible m support of the legal presumption and in explanation and rebuttal of the facts which may be thus shown. It would therefore seem to have been proper to admit proof of the financial condition of the defendants, or of either of them, during the time elapsed, also of their decease, of the administration upon and solvency of, their respective estates, of the sale of their realty to the plaintiff and others, under the order of the Orphans’ Court, and that during this time no demand was at any time made for this claim, until after the expiration of twenty years.

As the plaintiff claimed and so argued, that the issue of a scire facias, the filing of the pleas and. the amendments of the record, were circumstances in support of the judgment, we think the defendants were entitled to the benefit of the evidence offered, and which was refused by the court.

The judgment is therefore reversed and a venire facias de novo awarded.