10 Mo. 97 | Mo. | 1846
delivered the opinion of the Court.
This was an action originally commenced in the St. Louis Probate Court, by James Clemens vs. the defendant in error, on a judgment obtained against Wilkinson, in his life time. The judgment was dated April 25th, 1821.' The date of the notice to the executor, defendant in error, of the intention of the plaintiff in error to present his demand for allowance, is May 27, 1842. The testator died in September, 1841. The case was afterwards taken to the Circuit Court; the defence was payment. No evidence was preserved, in consequence of an agreement of the parties that the cause depended on the solution of the following question: Whether the statute of limitations, art. 4, sec. 1, page 396, Revised Code of 1835, annuls the bar created by the lapse of time, and removes the common law presumption of payment thence arising, and renders the lapse of twenty years from the date of that act necessary to raise the presumption of payment, which it is admitted would have attached to this demand but for that statute, or is that act merely cumulative? Judgment was given for the defendant in error.
In this case the parties have admitted that the presumption did exist at common law, and the only question is whether it is taken away as to judgments rendered prior to tíre taking effect of the act of 1835, before cited. If, as has been attempted to be shown, that the presumption did exist at common law, there must be some good reason why the legislature would extend it in case of such judgments, — five, ten, fifteen, twenty, forty years, — when by the very act by which it is contended this is done, so far from showing any dissatisfaction with the rule of the common law, in case of judgments rendered subsequent to the taking effect of the act, it is made more stringent and more difficult to be rebutted than it was before. If a judgment, had been rendered forty years before the taking effect of the act of 1835, and the common law had raised the presumption of payment, can we believe the legislature intended that in all such cases t ■ •<:-/ yerrs more show d elapse before such presumption should arise?
The other Judges concurring, the judgment will he affirmed.