Bailey v. Jackson

16 Johns. 210 | N.Y. Sup. Ct. | 1819

Spencer, Ch; J. delivered the opinion of the Court.

It is conceded that the rent demanded in this action having been created by deed, of which the commencement is shown, is not within the statute of limitations; and the only point is, whether payment of the rent can be presumed from the lapse of time ? The last quarter’s rent became due on the 25th of December, 1794.

The presumption of payment, founded on the efflux of tíme, has been applied to bonds, and even mortgages; and there is no reason to exempt a lease, reserving a pecuniary rent, from the operation of the rule. The general period for this presumption, which has been adopted, is twenty years. A bond which has been suffered to lie' for twenty years may be presumed to be paid ; so, also, after.a lapse of twenty years, a mortgage will be presumed to be satisfied, where the mortgagor has been in possession, and no ihteresthas been paid, nor any step taken to enforce the mortgage. (Philips' Ev. 117,118, 119. 4 Cranch, 415. 12 Johns. Rep. 242. 10 Johns. Rep. 414. 1 Pozo, on Mortg. 408. 1 Treat, on Equ. 332. n. 2 Vesey, 266.) It has been decided, that payment may be presumed within that time, if attended with circumstances strengthening the presumption; (10 Johns. Rep. 381.) The presumption arising from lapse of time may be repelled by circumstances explaining satisfactorily why an earlier demand has not been made. This Court observed in Jackson v. Pierce, (10 Johns. Rep. 417.) that the twenty years is only a circumstance on which to found the presumption, and is not, in itself, a legal bar; and in that case, the period of the Americansar was deducted. The same thing'must be done in this case, as respects the late war, on the same principle; for here the plaintiff was disabled to sue during the war. This is not like a statute bar, which, having once begun to run, will continue, notwithstanding a subsequent disability occurs. There are various other circumstances in this case : The removal of the defendant from Manchester, in England, to this country, even after the acceptance of the lease; the plaintiff remaining in England, ignorant, in all probability, of the defendant’s residence; the fact, that the defendant denied having paid any rent, or of his having entered into the lease, arising, probably, from frailty of memory; all these facts unitedly rebut the presumption of payment of the rent. Indeed, deducting two years and eight months, there will be only about one quarter’s rent which has remained for twenty years, before the rent was demanded and payment refused, and even a liability to pay positively denied.

Judgment for the plaintiff.