19 Or. 383 | Or. | 1890
delivered the opinion of the court.
The judgment sought to be revived in this case was rendered on the fifth day of February, 1861, and the record does not show that any execution was ever issued thereon. This proceeding was commenced on the nineteenth day of March, 1889, so that more than twenty-eight years intervened between the date of the entry of judgment and this attempt to enforce it. The only question I have thought it necessary to consider is, what effect has the lapse of time upon the right to enforce this judgment, independent of the statute of limitations; in other words, what would be the rights of the parties in this case if no statute of limitations were in force in this State. And this presents the question, what effect has the lapse of time, in this State, upon the right of a party to have a judgment renewed by the statutory proceedings. Does the common law presumption of payment after twenty years arise in such case, and what is its effect? Section 172, Wood on Limitation of Actions, says: “In all those States where sealed instruments or ‘specialties,’ as they are technically called, are expressly brought within the statute, the statute begins to run from the time when a cause of action arises thereon, and the bar is complete at the expiration of the statutory period, while in those States in which this class of instruments are not provided for, the common law presumption of payment attaches from the time when the cause of action arises and becomes complete as a presumptive bar at the expiration of twenty years from that time; and the mere lapse of twenty years without any demand of itself, raises a presumption of payment.” And the same author says in section 30 of the same work that a judgment obtained in the United States court or in the
So in Tilgman v. Fisher, 9 Watts, 441, the court said: “Such a lapse of time, in the absence of repelling evidence, is sufficient in law, without more, to raise a presumption of payment that would be binding upon both court and jury, so as to entitle the defendant, under a plea of payment, to a verdict and judgment in his favor. But being merely a presumption of the defendant’s having made payment, it may be rebutted by proof of intervening circumstances, such as a demand of payment, payment of part by the obligator, his admission that the debt is still due, or his inability to pay it within the twenty years.”
And in Rhodes, Ex., v. Turner and wife, 21 Alab. 210, the principle under consideration was directly applied to a judgment, the court saying: “If a final judgment had been rendered, according to the principles of the common law it would be presumed to have been paid after the expiration of twenty years; and if the parties allowed this period to elapse, without taking any steps to compel a settlement,
In Cope v. Humphreys, 14 Serg. & R. 15, it was held that after the lapse of twenty years a judgment is presumed to have been satisfied unless there be circumstances to account for the delay. And in the opinion of the court in that case, Peake’s Ev. 481 is cited where it is stated that twenty years is presumption of payment of a bond, and the same rule applies to a scire fat i ts for execution on a judgment. And Miller v. Smith’s Exer., 16 Wend. 425, is to the same effect. It is not possible to site all the cases bearing on this interesting subject, but the following may be added as additional illustrations of the principle involved: The State of Tennessee v. Cherry, 36 Ga. 388; Roe v. Willingham, 47 Ga. 540; Whitney v. French, 25 Vt. 663; Anderson v. Settle, 37 Tenn. 202; Diamond v. Tobias, 12 Penn. St. 312; Reynolds v. Green, 10 Mich. 356; Howland v. Shirtliff, 2 Met. 26; Anderson v. Smith, 3 Met. (Ky.) 491; Cheever v. Perley, 11 Allen, 584; Inches v. Leonard, 12 Mass. 379; Summerville v. Holliday, 1 Watts, 507; Freeman on Judgments, § 464; 1 Greenleaf Ev. § 39.
2. The foregoing authorities hold with great uniformity
The judgment will be reversed and the cause remanded, and if, in view of the opinion of this court, either party shall deem it necessary to amend his pleading and re-pry
Let the judgment be reversed.