Opinion
August Term, 1850.
1. Under the statute of 1826, the presumption of the payment or satisfaction of a judgment does not arise until ten years after the plaintiff has ceased to prosecute his judgment, that is, until ten years after the day of the return of his last execution.
2.The plea of payment to an action on a judgment, etc., is sufficient to cover the defense of a presumption of payment or abandonment of claim under our act of 1826.
APPEAL from the Superior Court of Law of MACON, at Fall Term, 1849, Ellis, J., presiding.
Gaither, N.W. Woodfin and J. W. Woodfin for defendant.
J. Baxter for defendant.
(263) The action is in debt, and brought on a judgment rendered against the defendant in favor of the plaintiff in the State of Georgia. That judgment was obtained at October Term, 1837, of Habersham Superior Court, and an execution issued from that term to the April Term, 1838, of the said court. On 20 November, 1837, the sheriff returned the writ, with the indorsement, "No property." No other execution issued on the judgment. The writ in this case issued on 4 March, 1848. The defendant, among other defenses, pleaded "payment," and it was insisted by him that more than ten years had elapsed since the judgment was obtained and before the issuing of the writ in this case. The plaintiff insisted that the presumption of payment did not arise: first, because ten years had not elapsed from the term of the court to which the fi. fa. issued on the said judgment was made returnable and the commencement of this suit; secondly, because the statute giving the presumption was not sufficiently pleaded; and, thirdly, because the statute did not apply to a judgment obtained in Georgia, where no such statute existed. The court was of opinion that, from the lapse of time, a presumption arose that the judgment upon which this action is brought was paid, and that presumption operated upon a judgment obtained in another State, as well as one obtained in this. The jury found a verdict for the defendant, and the plaintiff appealed.
Under the view we have taken of this case, it is not necessary for us to express any opinion upon the question whether the act of 1826 applies to a judgment obtained in a sister State, for, whether it does or not, the presumption of payment does not arise here. The act provides that the presumption of payment or satisfaction of all judgments, etc., shall arise (264) within ten years after the cause of action on the same accrues, etc. Rev. St., ch. 65, sec. 19. The question then is, from what period does the act begin to operate? Literally, from the rendition of the judgment, for then the plaintiff can bring his action upon it. Was that the meaning of the Legislature? We presume not, for the act goes on to provide that the action shall be brought under the same rules, regulations and restrictions as now exist at law. The statute of limitations does not apply to either bonds or judgments. With respect to the former, the doctrine of twenty years raising a presumption of payment was at an early period laid down by Lord Hale, who thought it merely a circumstance from which a jury might presume payment. The rule was followed, until at length it became the settled law of the Court. It was, however, a presumption, which ceased to exist when a sufficient cause was shown why the action had not been sooner brought. Thus, when it is shown that the debtor has been insolvent and unable to pay. Hull v. Horace, Cow., 109. So when a receipt for interest is indorsed on the bond by the payee, if it appears to have been made at a period when it was not the interest of the payee to make it, as when the twenty years had not elapsed at the time of the indorsement. Tucker v. Crisp, Sh., 827; Rose v. Bryant, Champ. N. P., 321. So when a demand has been made within the twenty years. Oswald v. Legh, 1 Term, 270.
The principle established by these cases is, that when the plaintiff shows that he could have derived no benefit by bringing his action sooner, or that the defendant has, within the twenty years, acknowledged the debt to be a subsisting one, by either paying interest on it or by promising to pay it, or that, within the prescribed period, he, the plaintiff, has demanded payment — in other words, has been endeavoring to get his debt paid — the presumption of payment will not arise. Such (265) were the rules and regulations governing the presumption of payment at common law upon the lapse of time. In this case the judgment was obtained at October Term, 1837, of the court. From that term an execution issued, returnable to April Term, 1838. The legal time which that execution had to run was six months, to wit, "until the first day of the court in April"; and in contemplation of law, up to that time the plaintiff was endeavoring to collect his judgment. So far as his rights were concerned in this particular, the return of it by the officer in November, 1837, had no effect. It was the act of the officer, voluntary on his part, and done, most probably, to free himself from the custody of the process. As evidence that its return did not affect the rights of the plaintiff on the question we are now considering, if he had caused an alias fi. fa. to issue from the April Term, 1838, of Habersham Superior Court, the law would have considered it so connected with the preceding one that the defendant would have had no power to dispose of his property between the time when the first writ was actually returned and the issuing of the alias, so as to defeat the latter. The lien created by the original would have been continued in the alias. Gilky v. Dickinson, 9 N.C. 341. In law, then, the plaintiff was endeavoring to enforce his judgment up to April Term, 1838, of the court, in which it was obtained. The time specified in the act did not expire until April, 1848. The writ in this suit was issued in March of that year. Suppose that executions had regularly issued from time to time of Habersham Superior Court, could it be pretended that a presumption of payment or of abandonment of his claim by the plaintiff could have arisen? Very clearly not. And why not? Simply because it would be manifest he had not abandoned his claim, which would rebut the idea of a payment. So (266) here, ten years have not elapsed since the plaintiff ceased to prosecute his claim under his judgment and the issuing of his writ. The legal presumption authorized by the act of 1826 does not arise in the case.
By the plaintiff it is further objected that the statute is not sufficiently pleaded. We think the plea of payment is sufficient; the statute need not be pleaded: it only raises a presumption, which is evidence under the plea of payment.
PER CURIAM. Judgment reversed, and venire de novo.