« НазадПродовжити »
If the deed which wants the indorsement be of modern date, and recourse cannot be had to the parties beneficially interested, a purchaser must use the utmost circumspection before he acts on the supposition that no lien exists. This he is still more concerned to do, if the present vendor is either himself the person, or is a voluntary claimant under the person, who, on the previous purchase, seems not to have paid the purchase money. But the necessity for caution and diligent inquiry is much diminished, if the property has undergone a change of owners since the time of the conveyance in which the defect appears ; because then a presumption arises that the intermediate purchasers had acquired information, and were satisfied, either that the receipt was originally omitted by mistake, or that payment of the consideration had been subsequently made. The case is evidently still stronger where an interval of considerable length has elapsed since the origin of the lien. Indeed, in this case, whether the estate has or has not in the mean time passed through the hands of subsequent purchasers, unless a recent acknowledgment can be proved or other satisfactory cause shown for the delay, the mere staleness of the demand will prove
fatal to it. And it seems that twenty years may be depended on as sufficient for the [*]purpose; the obvious conclusion from so long quiescence is that the lien has been satisfied and discharged(a).
It is not improbable, that a less period than twenty years would be held to raise this presumption, where
(a) Hunton v. Davies, 2 Cha. 344; Bidlake v. Lord Arundel, 1 Rep. 44; Heupert v. Benn, Finch, Cha. Rep. 93.
the property, since the question of lien must first have arisen and been enquired into, has been sold or mortgaged, or if the case be distinguished by any other circumstances which corroborate the supposition of a discharge.
In addition to the cases stated in the preceding divisions of this chapter, there remains to be noticed a few others, which, though similar in the general principle, cannot be reduced under any particular head. They concur, however, with the former in establishing the broad proposition, that unless there are circumstances peculiar either to the nature of the claim or to the person of the claimant, twenty years' forbearance to prosecute an ascertained demand is presumptive proof of payment(1).
Thus, in a case where a note above twenty years old, payable eight days after sight, was attempted to be enforced, Lord Ellenborough held, that as delay for twenty years afforded presumptive evidence of payment in regard to bonds, the same rule of presumption must à fortiori apply to securities of an inferior [*]description(a). So, at the time when it was considered that a general trust in a will for payment of debts operated to revive simple contract debts of the testator barred by the statute of limitations, it was decided, on two different occasions, that demands of above twenty years standing indisputably came not
(a) Duffield v. Creed, 5 Esp. N. P. Rep. 52.
(1) Price v. Fugua, 4 Munf. 68.
within this principle, and that the length of time furnished a clear presumption against their subsistence(a). In like manner it has been held, that where an estate, which was formerly conveyed to trustees for payment of debts, has for
late enjoyed by the equitable owner without interruption, such enjoyment, unless opposed by other considerations, raises a conclusive inference that the debts have been discharged(b).
It seems that even a less period than twenty years will be received as affording proof of payment, where the hardship of the case is great, and the inconvenience occasioned to the party affected by the demand, is solely owing to the neglect and carelessness of the claimant(1).
In a suit against an executor for performance of articles entered into by his testator fifteen years before, in which the latter had bound himself to the amount of 6,0001., it appeared that the plaintiff, shortly after the execution of the articles, had acknowledged satisfaction for the whole sum,-viz., by receipt of 4,000l. in money, and by a conveyance of land equal in value [*]to the remainder. On the testator's death, which happened about three years afterwards, it was discovered that the land had been previously settled on his wife for her jointure; and in regard to that cir
(a) Lacon v. Briggs, 3 Atk. Ambl. 231. 105; Oughterloney v. Earl Powis, (6) Anon. 12 Vin. Abr. 57, pl. 7.
(1) Clark v. Hopkins, 7 Johns. R. 556. Blake v. Quash, 3 M'Cord, 340. Young v. Price, et al. 2 Munf. 534.
cumstance the bill was brought. But at the hearing, the court declared, that as the plaintiff had acknowledged receipt of the 6,0001., which of itself was evidence of the performance of the articles, and had made no further demand for several years, it would be unreasonable to put the executor to prove a precise payment after so long a time. The bill was therefore dismissed.(a)
It remains to observe, that where a debt which is claimed after a great number of years is disputed by the defendant, who however admits that it has not been paid, so that all inference of payment from the lapse of time is excluded; yet a court of equity, act: ing on the common principle of resisting stale demands, if the justice of the case so require, will hold the long neglect of the claim to be prima facie evidence that the debt never existed(b).
In some instances the payment of demands is inferred from circumstances alone without the aid of time(1). Of this kind are claims for debts alleged to remain unpaid, while subsequent demands due on the same account, and arising from the same cause, are proved or admitted to have been regularly discharged. Thus a receipt for rent due at a particular time is strong presumptive [*]evidence of the payment of all former
If a man give a receipt for the last rent,
(a) Duke of Newcastle v. Cleyton, Finch Rep. 246.
(6) Christophers v. Sparke, 2 Jac. and Walk. 223.
(1) Chewning v. Proctor, 2 M'Cord, Ch. 15.
says Lord C. B. Gilbert, the former is presumed to be paid, because he is supposed to receive and take in the debts of the longest standing; especially if the receipt be in full of all demands, for then it is plain there were no debts outstanding(a). Presumptions of payment, however, arising in this way are, like all other presumptions, liable to be repelled by proof to the contrary ; unless, indeed, the acquittance for the more recent demand be under hand and seal, when such proof cannot be received, on the principle that parol evidence may not be given in contradiction of a written instrument(b).
In a modern case, on an action for work and labour done for the defendant, where it was proved, that the plaintiff and other workmen employed by the defendant came regularly to receive their wages every week, and that the plaintiff had never been heard to complain of non-payment : Lord C. J. Eyre held this evidence to furnish a clear presumption subversive of the plaintiff's demand(c).
(a) Gilb. on Evidence, 142. (6) Ibid. ; Co. Lit. 373 a.
(c) Lucas. v. Novosilieski, 1 Esp. N. P. Rep. 296.