Smith's Ex'r v. Benton

| Mo. | Jan 15, 1852

Gamble, J.,

delivered the opinion of the court.

The plaintiff in error sued Benton on a bond dated June 10th, 1821, by which Benton promissed to pay to Thomas A. Smith, plaintiff’s tes* tator. $2000, one day after date. On this bond there was a credit for $750, paid July 5th, 1821.

The defendant answered, stating that the bond was given for the purpose of enabling the obligee to raise immediately the sum of $2000, in part payment of sums then due him on pre-existing contracts, and that soon thereafter and long before the death of the said obligee (Thos. A. Smith) all such contracts were settled and paid and the said bond as part and parcel thereof. The answer, after stating circumstances, intended to show that the bond had been paid, concludes by insisting upon the lapse of time and the statute of limitations as bars to the recovery.

The answer, was signed by the defendant; and at the bottom, a magistrate of the District of Columbia, appends his statement that the defendant personally appeared before him and made oath that the facts stated in the answer were true.

Before the trial, the plaintiff moved to strike out the answer because it was not verified by the defendant’s affidavit, but the court overruled the motion

On the trial of the cause, the plaintiff gave in evidence to the jury; the bond with the credit endorsed thereon, dated July 5th, 1821. There was no other evidence before the jury. The court instructed the. jury, at the request of the plaintiff; 1st. That they should find for the plaintiff unless they find from the evidence that the defendant, Benton, has paid the debt sued for. 2d. That it devolves, upon the defendant to prove the demand sued for was paid, before they can find that the same was paid by the defendant. 3d. That the jury will disregard as evidence of payment, the facts and statements made by the defendant in his answer, in regard to the payment of the demand sued for.

The plaintiff asked an instruction which the court refused. It is in these words: “Although the jury, may find from the evidence, that twenty years had elapsed after the'bond became due, before the commencement of this suit, yet if the jury find from the facts and circumstances of the case, that the debt sued for has not been paid, then the jury ought to find for the plaintiff.”

At the request of the defendant, the court gave the following instructions.

1. If the jury find that twenty years elapsed after the bond became due, and after the date of the credit endorsed on the bond, and before the commencement of this suit, then the pi'esumption is that the debt has been paid, and in the absence of proof to repel this presumption, the jury must so find.

2. In this case, no evidence has been given to rebut the presumption of payment.

A verdict and judgment having been given for the defendant, the plaintiff brings the case before this court by writ of error.

The first matter of complaint is, the refusal of the circuit court to strike from the files the answer of the defendant for want of a sufficient affidavit. The objection is that the defendant, although he signed the answer just above the magistrate’s certificate, of his having been sworxito the truth of the facts stated in the answer, did not sign the certificate of the magistrate as an affidavit separate from the answer.

If the certificate is regarded as an ordinary jurat, then the whole answer is an affidavit. But this point may be dismissed with the remark that the practice act is substantially complied with.

As all the instructions asked by the plaintiff were given, except the fourth, and as it stands in immediate connexion with the questions involved in those given for the defendant, they may be considered together.

The law as declared by the circuit court is, that after the lapse of 20 years, a bond is presumed to be paid, and that this presumption, like any prima fade evidence of a fact stands good unless it be rebutted by evidence to be given by the party setting up the bond, satisfying the jury that in fact the payment was not made.

The plaintiff insists that the presumption of payment, as known to the common law, does not apply to bonds executed prior to the year 1835: Revised Code of 1845, 721; section 2. It might be necessary to discuss this question here, if it were not settled in the case of Clemens vs. Wilkinson, 10 Mo. R. 97. That was a case in which the presumption of' payment was applied to a judgment rendered prior to the year 1835, and in which the argument was made that the 1st section of the 4th art. of the act of limitation superceded the common law presumption and gave a commencement to the presumption created by statute from the 1st day of December, 1835. The two sections of the statute, the first applicable to judgments and the second to specialties are identical in their provisions and must have the same construction. The decision then, in Clemens vs. Wilkinson, is conclusive upon this question. It was there held that the common law presumption was not affected by the statute, but that a judgment rendered prior to 1835, should be presumed to be paid after the lapse of twenty years from its rendition. The instructions given in this case for the defendant were in accordance with this decision. The fourth instruction asked by plaintiff was properly refused, for although a jury ought not to find that a bond has been paid, when they are convinced “from the facts and circumstances” that it has not been paid, yet these “facts and circumstances” must appear in the evidence, and here there was no evidence before the jury, on either side, hut the bond and the credit endorsed.

The judgment then, is, with the concurrence of the other judges, affirmed.