(February Term, 1886.)
Presumption of Payment — How Rebutted.
1. Under the law as it was prior to 1868, the presumption of payment of a bond, raised by the lapse of ten years after its maturity, was an artificial presumption of fact, raised by the law, to be acted on by the jury, and was not created by any statute.
2. This presumption is not one of law, but of fact, and may be rebutted by showing that no payment was in fact made, or such other circumstances as are sufficient in law to remove the presumption.
3. The presumption is founded on the remissness of the creditor in suing, and the inference that his reason for not suing is, that the debt has been paid, and where there is a positive inability to sue for a part of the ten years, such part should not be counted.
4. So, where a debtor died after the bond was due and the presumption had begun to run, and no administration was had on his estate for some years; It was held, that the time during which there was no administration must be eliminated, and only the time during which there was a person in esse to sue could be counted in computing the ten years.
(764) CIVIL ACTION, tried on appeal from a Justice of the Peace, before Montgomery, Judge, and a jury, at Fall Term, 1885, of the Superior Court of IREDELL County.
Mr. M.L. McCorkle, for the plaintiffs.
Mr. D. M. Furches, for the defendant.
ASHE, J., dissented from the judgment of the Court.
This action, begun in a Justice's Court, and upon an adverse judgment, removed by defendant's appeal to the Superior Court of Iredell County, is for the recovery of the money due on a note under seal, executed by the defendant's intestate, William Maxwell, to the plaintiff, on the 30th day of January, 1868, and due one day after date.
William Maxwell, the debtor, died in December, 1869, and no administration was granted on his estate until September 6, 1882, when letters issued to J. A. Watts, and the present suit was instituted in the next month. The latter died pending the action, and letters de bonis non, on the intestate estate, were granted to the present defendant.
The defence relied on, is the payment presumed from the lapse of time since the maturity of the obligation, and this, the plaintiff insists, is rebutted by the long interval, more than twelve years, after the intestate's death, during which there was no administration, and no one to sue for non-payment of the note. The Court on these facts was of opinion, that the statutory presumption had not been repelled, and so instructed the jury, who find for the defendant, and from the judgment rendered on the verdict the plaintiffs appeal.
Strictly speaking, there was, when this cause of action (765) accrued, no statute limiting the time in which suit must be brought on a bond, but after the lapse of ten years, in the absence of rebutting evidence, an artificial presumption of payment, as a fact, was raised, to be acted on by the jury. It was not a presumption of law, such as arises from an adverse occupancy of land for thirty years, of the issue of a grant from the State, which was not allowed to be controverted; but of fact, open to disproof, in showing that no payment had been made, or such facts, as in law, were held to be sufficient to remove the presumption, as in case of the debtors continued insolvency during the entire period, which explained the inaction of the creditor. His remissness furnished the source of the inference that the debt had been paid, for why does he wait, unless this is so? The inquiry is not whether the time in which there was no administration should be counted, or left out in computing the ten years, but whether the absolute inability of the creditor to bring suit, except for a period less than ten years of the entire intervening space, does not fully and adequately account for the delay, and repel the presumption resting solely on the creditor's inactivity.
"It is clear," remarks GASTON, J., "that a forbearance to require payment of the principal or interest of a bond for twenty years," (the time at common law, reduced to ten by the Act of 1826,) "after it becomes due, raises a presumption that it has been paid. But this presumption may be raised by forbearance for less than twenty years, combined with other circumstances rendering the inference of payment probable." Matthews v. Smith, 19 N.C. 287.
The same eminent Judge, in a later case, uses this language: "The presumption against a bond, raised from the lapse of twenty years, without demand by the obligee, or acknowledgment of the obligor, is, in one sense, a presumption of law. The law attributes to such lapse of time, a technical operation, so that it is the duty of the court, if no opposing testimony be offered, to advise the jury to find (766) the fact of payment. But the inference to be raised, is an inference of fact, liable to be attacked, repelled or confirmed by other testimony. And it is the duty of the triers of the fact, allowing to this technical presumption its prima facie force, to find the facts as it may appear upon the proofs." McKinder v. Littlejohn, 23 N.C. 66.
When the case was again before the Court, DANIEL, J., in the opinion, thus speaks: "The law makes it the duty of the debtor to seek his creditor and pay him. Take the fact to be then, that for the space of eighteen months, during the latter part of seven or eight years, in the twenty years from the time the bond became payable, Vaughn did have at Woodville" (in Mississippi, to which place he had removed,) "the means of payment, then the circumstances of distance between the debtor and the creditor, might, we think be left to the jury, with the fact of a continuous insolvency during the residue of the twenty years, as some evidence that the debtor did not pay the debt during that small space of time." McKinder v. Littlejohn, 26 N.C. 198. With the attention of the Court thus called to the kind and nature of the rebutting evidence required in neutralizing the statutory presumption, the very point now presented came up for consideration, and was determined in Buie v. Buie, 24 N.C. 87. The late Chief Justice, then presiding in the Superior Court, thus charged the jury: "Upon the plea of payment, under the Act of 1826, (Rev. Stat., ch. 65, Sec. 13), a note, situated as this was, was presumed to have been paid after thirteen years," (the period elapsing when the Act of 1826 was passed,) "unless that presumption was rebutted. That here, as to Neil Buie's estate, it was admitted that the thirteen years had run; but there was no administration upon his estate, until the year before the suit was brought, and this was sufficient to repel the presumption, for during all that time, there was no person to pay." Reversing the ruling on appeal, the Court, GASTON, J., delivering the opinion of himself and his very able associates on the bench, says: "It cannot be doubted, we think, that the want of a person against whom to (767) bring suit, rebuts the presumption of payment, arising from forbearance to sue." Ingram v. Smith, 41 N.C. 97; Woodhouse v. Simmons, 73 N.C. 30; Quince v. Ross, 3 N.C. 180; Grubbs v. Clayton, 3 N.C. 378 (575); Ridley v. Thorpe, 3 N.C. 343; Glenn v. Kimborough, 58 N.C. 173. We are not aware of any adjudication since, that calls in question the rule thus sanctioned by these eminent jurist, and, as far as we know, accepted and acted on as correct, and the reasonableness of which finds its own self-vindication in the general acquiescence.
In a case decided in Pennsylvania in 1882, Bentley's Appeal, 99 Penn. St., 500, these modes of repelling the presumption are mentioned:
The evidence must consist of;
I. An unconditional and unqualified admission, either expressed or implied, on the part of the defendant, within twenty years, of the justness of the claim, and that it is still due.
II. A payment on account of either the principal or interest, either of which is an implied recognition of the debt.
III. The situation, condition, or circumstances of the parties, such as the absence of the plaintiff or defendant in a foreign country, the insolvency or embarrassment of the plaintiff or of the defendant."
At first view, it may not seem to be in harmony with Hall v. Gibbs, 87 N.C. 5, where it is held that the death of the obligee, and the want of administration for more than four years thereafter, which must be counted to make up the statutory period, were insufficient to repel the presumption. The same remissness in not suing out letters of administration by those entitled to the personal estate, may stand, as rebutting evidence, upon somewhat the same ground as the remissness of the creditor in asserting his demand by action, and hence the explanatory inference is drawn, that the debt has been discharged. But the case is different when the debtor remains the whole time accessible to process, and none is sued out to enforce his liability. The distinction in the cases may be maintained, upon the principle that there can be no forbearance, (768) the admitted foundation of the presumption, when there is no one to forbear or to indulge the debtor, and no inference from remissness can be drawn.
We are unwilling, therefore, to repudiate the ruling in Buie v. Buie, supra, so long recognized as law, and unsettling an adjudication not only resting upon authority, but commending itself to our approving judgment. There is error, and there must be a venire de novo, to which end this will be certified to the Court below for further proceedings therein.