188 Pa. 463 | Pa. | 1898
Opinion by
The plaintiff, on June 24,1897, issued a scire facias to revive and continue the lien of a judgment entered June 1, 1876. More than twenty years having elapsed from the entry of the judgment, the debt was paid by presumption of law at the time the sci. fa. was issued. In the plaintiff’s statement no fact or circumstance was averred as explanatory of the long delay in demanding payment, and no new undertaking, and no other act or declaration of the defendant was alleged of such a character that it would amount to a recognition of the debt, such as a payment of either interest or principal on account of the debt. It is true that the statement averred that no part of the interest or principal of the debt had ever been paid, but that averment wouldnot suffice to create an obligation on the part of the defendant to pay the debt after twenty years had elapsed. Otherwise there would be no use of a presumption of payment resulting from lapse of time. Yet we have held many times over that after twenty years a legal presumption of payment arises which it is the duty of the plaintiff to rebut by affirmative proof. In Peters’s Appeal, 106 Pa. 340, we said, “ After a lapse of twenty years mortgages, judgments and all evidences of debt are presumed to be paid: Foulk v. Brown, 2 Watts, 209; and a recognizance in the orphans’ court: Beale v. Kirk, 84 Pa. 415; and in less than twenty years, with circumstances, payment may be presumed: Hughes v. Hughes, 54 Pa. 240; Briggs’s Appeal, 93 Pa. 485. After twenty years the law presumes that every
In the case at bar the learned court below held that because the defendant had said in his answer that, “ he has not made a new promise nor paid anything on account of said judgment,” the presumption of payment was rebutted, and the plaintiff was entitled to judgment for the whole amount of his claim. It is manifest that the statement of the defendant was made to meet the claim that was set up against him. It was, on the face of the statement, a claim more than twenty years old, and the defense of presumption of payment from lapse of time was alleged in the immediately preceding sentence, and then to rebut any inference of a recognition of the debt and a liability resulting therefrom the defendant added an averment that, “he has not made a new promise nor paid any money on account of
We are of opinion that the statement made in the affidavit of defense is to be regarded as the negation of any obligation arising from a payment on account, and not as a declaration that the whole amount of the bond was due because it had not been paid, and therefore the case should go to a jury, where all the facts can be heard and the cause intelligently decided on its merits.
Judgment reversed and procedendo awarded.