56 Kan. 392 | Kan. | 1896
The opinion of the court was delivered by
•: A period of 27 years elapsed from the maturity of the last note and the indorsement of interest paid thereon before any attempt was made to recover upon the indebtedness, or to foreclose the mortgage, yet the action was not barred by our Kansas statute of limitations because of the non-residence and absence of the defendants (Civil Code, § 21), and the South Carolina statute was not pleaded. At the common law a presumption of payment arises after the lapse of 20 years, and the principal question in this case is whether such presumption obtains in this state, notwithstanding the statute of limitations. It is claimed by the plaintiff in error that the common law is adopted in this state only in aid of the general statutes, and as modified by constitutional and statutory law, judicial decisions, and the condition and wants of the people (Gen. Stat: 1889, ¶ 7281), and that the doctrine of the presumption of payment from the lapse of time is inconsistent with our statutes of limitation, and therefore cannot be recognized. In England, however, this presumption arises, and is given effect, in the courts both of law and equity,
The federal courts have declared the same doctrine, from an early day down to the present time, refusing, independently of the statute of limitations, to entertain and enforce stale demands. (Piatt v.Vattier, 9 Pet. 405, 416, 417 ; McKnight v. Taylor, 1 How. 161; Bowman v. Wathen, 1 id. 189, 193 ; Speidel v. Henrici, 120 U. S. 377, 387, and cases cited.) The state courts very generally hold the same doctrine. Several of the decisions are cited in the foregoing cases from the supreme court of the United States, and we will refer to a few others, as follows : Cheever v. Perley, 11 Allen, 584; Kellogg v. Dickinson, 147 Mass. 432, 437, and cases cited; Bean v. Tonnele, 94 N. Y. 381, 385, and cases cited ; Matter of Accounting of Neilley, 95 id. 382, 390 ; Lash v. Von Neida, 109 Pa. St. 207; Gregory v. Commonwealth, 121 id. 611; Shubrick v. Adams, 20 S. C. 49, 53; Wright v. Mars, 22 id. 585; Dickson v. Gourdin, 26 id. 391; Stimis v. Stimis, 33 Atl. Rep. (N. J.Eq.) 468.
The presumption of payment from lapse of time differs essentially from a statute of limitations. The