Dickson v. Gourdin

Citations

• 26 S.C. 391
• 2 S.E. 303
• 1887 S.C. LEXIS 54

Syllabus

<p>1. The statute of limitations, as such, has no application to an action on a sealed instrument executed prior to 1870. But the courts will presume payment after the lapse of twenty years, if there is nothing to rebut such a presumption.'</p> <p>2. After this presumption of payment is complete it can only be rebutted by such proof as would take an action upon a promissory note out of the statute of limitations.</p> <p>3. The rebuttal of this presumption by a part payment is not upon the theory of a new promise, but of an admission by which the old debt is acknowledged to be unpaid. The statute of limitations creates a legal bar to the action, but where there is no statutory bar, lapse of time merely raises a presumption of payment, which may be rebutted.</p> <p>4. Part payments within twenty years after maturity made by the principal obligor with the knowledge of the surety, his brother and partner, rebut the presumption of full payment by either the principal or the surety.</p> <p>5. This action on a bond distinguished from the case of Walters v. Kraft, 23 S. C., 583, which was on a promissory note.</p>