Hummel v. Lilly , 16 Pa. Super. 327 ( 1901 )

Opinion by

William W. Porter, J.,

This suit is by an administrator upon a scire facias to revive a judgment. When the judgment was offered in evidence upon the trial it was found to have been entered June 1, 1876, upon a note dated May 31, 1876, payable eight months from date. Instantly arose the legal presumption of payment based on the lapse of time. Had the plaintiff stopped here, his right to recover would have been manifestly gone. He, therefore, called the defendant as for cross-examination and from him adduced certain facts. The defendant was not exact in the use he made of English terms, but his testimony showed that he gave a note to the father of the plaintiff (now suing as administrator) and that a judgment was entered on it in 1876 ; that he owned a piece of real estate of some value upon which the judgment was, with other incumbrances, a lien; that the witness thought the note was paid when the real estate was sold by the sheriff ; that the plaintiff’s decedent and certain other of the lien creditors arranged to attend the sheriff’s sale and to bid up the defendant’s property to cover the liens and thus secure their payment; that the defendant saw them at the sale; that from that time on payment of neither principal nor interest was demanded by the plaintiff’s decedent, although he met the defendant daily thereafter for a considerable period; that the defendant was, after the sale of his real estate, a contractor for the construction of some large buildings in Bethlehem and at times had large balanees in bank; that he made no payment on account nor promise to pay, within twenty years.

It seems quite unnecessary to review the many cases cited to us bearing upon the effect of the presumption of payment after twenty years. This very case was before the Supreme Court on a judgment sur rule for insufficient affidavit, 188 Pa. 468, and the authorities were many of them there noted and applied. The general rule may be again stated to be, that within twenty years the law presumes that the debt has remained unpaid, although the presumption of payment may arise and be applied within twenty years, if the lapse of time be supplemented by an exhibition of facts aiding the presumption of payment. “ 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.” The facts stated upon the trial differ in little from those set forth in the pleadings upon which the Supreme Court passed.

Nothing is shown in rebuttal of the presumption. The additional facts which do appear rather aid the presumption of payment. We are of opinion that no error was committed in entering the nonsuit and the judgment is therefore affirmed.