Carll v. Hart , 15 Barb. 565 ( 1853 )

By the Court, T. R. Strong, J.

If the provision of the revised statutes (2 R. S. 301, § 48) in respect to the presumption of payment arising from the lapse of time, in reference to scaled instruments, is applicable to this case, its operation was prospective ; it affected the right of action in like manner only as if the demand accrued when the provision took effect. (Waddell v. Elmendorf 12 Barb. 583. People v. Supervisors of Columbia, 10 Wend. 363. Fairbanks v. Wood, 17 Id. 329. Van Rensselaer v. Livingston, 12 Id. 490. Sayre v. Wisner, S Id. 661. Wadsworth v. Thomas, 7 Barb. 445.) Giving it that operation, the fact admitted by the demurrer, of payments Upon the bond and mortgage, by John Hart, who executed them, in his lifetime, and within twenty years before the commencement of the action, were, within the express words of the provision, sufficient to repel the presumption of payment. John Hart, as stated both in the complaint and answer, died in 1831; the action was .commenced in the fall of 1850 ; the payments must therefore have been within a year previous to his death, and within twenty years from the time the right accrued.

If the law on the same subject, in force when the statute provision took effect, is to govern, it is still more clear, that upon the facts admitted, the presumption of payment was overcome. In addition to payments upon the bond and mortgage, the demurrer admits the acknowledgment and recognition by John Hart, within the same period, of the existence of the bond and mortgage as valid and subsisting. And before the statute, a verbal acknowledgment, or recognition of the debt, was sufficient to rebut the presumption. (Park v. Peck, 1 Paige, 477. Heyer v. Pruyn, 7 Id. 465. Van Rensselaer v. Livingston, 12 Wend. R. 490.) Whether it was before or after the presumption attached, was not material.

[Monroe General Term, September 5, 1853.

Welles, Selden and T. i?. Strong, Justices.]

I see no error in the admission of the letters of Joel S. Hart J and the conclusion of the referee in respect to the adjustment of the amount due in 1837, and the agreement to allow interest therein, cannot properly be disturbed.

Judgment affirmed, with costs.