Osborne Estate , 382 Pa. 306 ( 1955 )

382 Pa. 306 (1955)

Osborne Estate.

Supreme Court of Pennsylvania.

Argued April 20, 1955. June 27, 1955.

Before STERN, C.J., STEARNE, JONES, BELL, CHIDSEY, MUSMANNO and ARNOLD, JJ.

Stanley Jakubowski, for appellant.

Robert J. Lindsay, Jr., for appellee.

OPINION BY MR. JUSTICE ALLEN M. STEARNE, June 27, 1955:

The question involved is whether after twenty years, in the absence of affirmative evidence of payment or acknowledgment of indebtedness, does proof that the books and records of a building and loan association mortgagee disclose no evidence of payment rebut the presumption of payment? The Orphans' Court ruled such evidence insufficient. This appeal followed.

The White Eagle Building and Loan Association, claimant, granted a mortgage loan to decedent, Ida U. Osborne, and her husband John L. Osborne (who predeceased her) on premises 4048 and 4052 Powelton Avenue. The loan became in default in 1932. A former secretary of claimant testified that the books of the association revealed no payment since March, 1932. The learned auditing Judge found as a fact that ". . . claimant has failed to show a demand upon the decedent within twenty years. . . ." He also found that during this period there was no effort made to enforce collection and no reason was given which explains the failure of claimant to do so.

This Court, in closely similar factual situations, has repeatedly decided that such evidence is insufficient to overcome the presumption of payment: Grenet's Estate, 332 Pa. 111, 2 A.2d 707; Corn v. Wilson, 365 Pa. 355, 75 A.2d 530; Engemann v. Colonial Trust Company, 378 Pa. 92, 105 A.2d 347; Haughey v. Dillon, 379 Pa. 1, 108 A.2d 69. See also Hennessy Estate, 82 D. & C. 38.

Decree affirmed at cost of appellant.