Executors of Wightman v. Butler

Citations

• 29 S.C.L. 357

Syllabus

<p>1. In an action of debt on bond, it appeared that part of the debt for which it was given had been due many years, and that at the date of the bond a new loan was made, for which with the old debt the bond was given; the obligor at the same time executing a mortgage of four negroes to secure the debt, three of whom after the bond became due were taken into the possession of the mortgagee and some time afterwards were sold, but the amount realised by the sale was not equal to the debt secured by the bond. Upon the death of the mortgagee, an action was brought to recover the balance due. The clerk and acting executor of the mortgagee, called by defendant and examined by consent, proved that he had had the bond in possession from its date, had had exclusive management of the mortgagee’s bussiness, who did not receive any money himself, and from these circumstances was confident the debt had not been paid. The witness said the debt was inventoried as doubtful, it being uncertain whether the defendant could pay, but that his pecuniary condition had improved. Disallowing any charge for hire from the time possession of the negroes was taken to the time of the sale, and crediting the bond with their value at the time they went into the mortgagee’s possession, of which there was no evidence but the sale, there was a balance of principal and interest due.</p> <p>2. From the sale till suit brought only about eight years having elapsed, connected with the evidence of the executor, it was held no presumption of payment arose.</p> <p>3. No legal presumption of payment of a bond can arise under twenty years. Short of that time is only a circumstance which connected with other facts, leads the mind to the conclusion that the debt has been paid.</p>