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foundation exists on which an allegation to that effect can be reasonably supported(a) (1).
(a) 12 Ves. 266; 19 Ves. 200.
(1) Vide Boardman et al. v. De Forest, 5 Conn. Rep. 1. Jackson v. Hotchkiss, 6 Cowen, 401. Rearden v. Searcy, 3 Marsh. 544. Palmer v. Dubois, 1 Rep. Con. Ct. 178. Haskell v. Keen, 2 N. & M. 160. Smith v. Richardson, ib. 166. Shields v. Pringle, 2 Bibb, 387.
PRESUMPTIONS OF FACT CONTINUED.
Of the presumed satisfaction of Annuities, Portions,
Legacies, Liens for Purchase Money, and other Demands not within the Statute of Limitations.
1. ANNUITIES, whether the subject of gift or purchase, are, like debts and other demands secured by specialty (which have been considered in the last chapter), liable to the implication of satisfaction or a release, from long neglect to enforce the payment of them. And it seems, that a lapse of twenty years between the last payment and the time when a legal demand is made, unanswered, will defeat the annuitant's right(a).
But a less period than twenty years will not supply the inference that an annuity has been discharged or released, unless there be some auxiliary evidence which by its own proper force supports the presump
(a) Smallman v. Hamilton, 2 Walthall, 2 Cha. Rep. 219. Sed Atk. 71 ; Southcot v. Southcot, 1 vide Duke of Albemarle v. Lady Cha. Rep. 108; Bales v. Proctor, Purbeck, Fin. Rep. 252. ib. 144. See also Bonnington v.
tion and makes up the deficiency of time(a). So, although no payment of interest may have been made for more than twenty years, yet if the existence of the annuity has been acknowledged within that time, it will rebut any [*]defence grounded solely on the plaintiff's delay in prosecuting his claim(b).
It has been contended, that although where by reason of the shortness of time, or from particular circumstances, the presumption of satisfaction does not arise, an account of the arrears of an unpaid annuity cannot be carried back further than six years, that being the period to which accounts are restricted in cases where the rents and profits of estates are recovered in equity or by action at common law(c). The point, however, has been decided to the contrary. And it seems that whenever the right to an annuity itself is not defeated, all the arrears may be recovered(d).
In the case of annuities granted by way of pin-money, there is a distinction to be observed with regard to the amount of arrears, which may be recovered at the husband's death. If the husband and wife have lived together, the arrears for the preceding twelve months only can be called for, because the wife having had the advantage of residing with her husband, is supposed in that way to have had her claim satis
(a) See Aston v. Aston, 1 Ves. 199, 215. See also 10 Ves. Ves. 264 ; Cupit v. Jackson, 469, 470. M-Clel. 495.
(d) Aston v. Aston, 1 Ves. 264 ; (6) Wynn v. Williams, 5 Ves. Wynn v. Williams, 5 Ves. 130; 130, 134.
Cupit v. Jackson, M'Clel. 495. (c) Harmood v. Oglander, 6
fied(a), or in consideration of her maintenance to have [*]waived it(b). But where the parties have lived separate, and the wife has not received a distinct and particular allowance for her support, the court will decree an account as far back as the arrears go(c.) So, if the wife were of unsound mind, all the arrears will be recoverable although she might continue to reside with her husband, because her condition rendered her incapable of waiving her right(d).
II. Portions which are charged on real property, are not unfrequently suffered to remain on the security of the estate after they become due. When this is the case, so long as interest is paid or the demand otherwise periodically acknowledged, the right of the party entitled to the portion, of course, cannot be prejudiced. But if neither interest be received, nor regular acknowledgments of the existence of the charge be made by the land-owner, a neglect of the portioner to pursue his right within a reasonable time, as twenty years, will raise the presumption that the portion has been satisfied or release d(e).
(a) i Ves. 267; Offey v. Of- 1 Atk. 269. the latter case also fley, Prec. Cha. 26. It may be shows that a parol promise made remarked, that a similar rule ap- by the husband to the wife, that plies to the case of a fund settled she should have the arrears of her to the separate use of a feme co- pin-money, is another cffcctual vert, who suffers her husband to ground of exception from the gereceive and appropriate the yearly neral rule, income without complaint. Pow (c) See 1 Ves. 267. ell v. Hankey, 2 P. Wms, 82, and (d) See Brodie v. Barry, 2 Vesa note by Cox, Ib. 84.
and Be. 36. 39. (6) Thomas v. Bennett, 2 P. (e) Standish v. Radley, 2 Atk, Wms. 341 ; Ridout V. Lewis, 177.
An admission of the right within twenty years before the commencement of a suit will exempt the case, as it has been intimated, from the principle of implied satisfaction ; and to have this effect, it is immaterial [*]whether the admission be express or implied(a). The presumption may also be rebutted by proof of the portioner's ignorance of his right, or of fraud on the part of the persons interested to prevent his asserting it(1).
The latter proposition is deduced from the case of the Earl of Pomfret v. Lord Windsor(6). As that case is much complicated in its circumstances, a statement of it in this place, so far as relates to the point under discussion, will not, it is conceived, be deemed superfluous.
In 1697, lands (the estate of Lady Jefferies) were conveyed in trust to raise 20,0001. for the benefit of Lord Jefferies, her husband. Lord Jefferies died in 1702 intestate, leaving his wife, and an only daughter, who was then an infant. Lady Jefferies in the following year intermarried with Lord Windsor. In 1708, a private Act of Parliament was passed declaring that the 20,0001., subject to the payment of Lord Jefferies' debts, should be distributed according to the statute ; and in 1712, by a decree in Chancery, the 20,000l. were ordered to be raised forthwith, the debts of Lord Jefferies to be paid, and
(6) 2 Ves. 472.
(a) Barrington v. O'Brien, i Ball and Be. 173.
(1) Hamilton v. Smith, 3 Murph. 115.