128 A. 511 | Pa. | 1925
Argued January 13, 1925.
Appellant's claim is based on a note under seal, dated September 15, 1890, and the sole question before us is whether the evidence adduced at the hearing was sufficient to overcome the presumption of a payment arising from lapse of time. Whether it is sufficient in quantity and quality is for the court, in a case such as this: *538
Fidelity Title and Trust Co. v. Chapman,
The note was presented for payment from this estate after the maker died in 1921. An effort was made by claimant to show the debtor was unable to pay the debt. Insolvency, to be available to rebut the presumption, must continue during the whole period of the existence of the debt, and it must be shown with the force of a substantive fact: Sheafer v. Woodside,
All the debtor's property was sold in 1894, some time after the maturity of the note. Prior to this time he was conducting a business, and, while thus engaged, was not insolvent. Here, then, is a break in the chain of proof claimant cannot close; during this time the debt might have been paid and there is nothing to show it was not. From the time of the sheriff's sale until 1919 he was wholly without means, except small earnings and these were scarcely sufficient to keep him, his wife and daughter. His sister died during the last named year, and the debtor became her sole distributee. He received various sums of money, in all about $2,500, from the estate in addition to the ownership of an undivided half interest in a tract of land; the distribution of the proceeds of its sale is the cause of the present contest. When the *539 debtor died, he had over $2,000 in bank. There was no evidence the note had ever been presented for payment, or that any payment had been made on account of it during the thirty years, or that any had been demanded.
The principles of law which govern claims of this character have been recently stated in Gilmore v. Alexander,
The decree is affirmed, at the cost of appellant.
