Appeal of Wingett

[493] Opinion, Mr. J cbtioe Willtams : We agree with, the learned, judge of the court below, that the act of 1855 is an answer to the claims made on behalf of legatees by the executor of the will of Reuben Wingett. The will was probated and letters testamentary issued in April, 1850. -The first legacy fell due in 1851, and the last payment on the last legacy became due in September, 1864, when the farm on which it is sought to charge the legacies came into the full possession of Silas Wingett, under the terms of the devise to him. At that time the possession of the farm passed out of the executors, who were also trustees under the terms of the will, and vested in Silas, the devisee. He continued to own and occupy it until November, 1886, when it was sold by bis assignees, he having become insolvent. The proceeds of this sale are the fund for distribution, and the contest over it is between the legatees under the will of Reuben Wingett, and the lien creditors of Silas, the devisee. For more than twenty-two years, after reaching the age of twenty-five years, Silas had been the owner and occupant of the farm, and during all that time, as well as the sixteen years dining which the executors were in possession, it is alleged that nothing bad been paid upon the legacies. What, then, was the effect of the act of 1855 upon the legatees ? Did it put the burden of showing the circumstances necessary to relieve against the bar of the act upon them? This is answered by a glance at the act itself. It provides that any one claiming the payment of any ground-rent, annuity, or other charge upon real estatp, which has been due for twenty-one years, must show some “piayment, claim, or demand,” on account of the alleged lien, or some “ declaration or acknowledgment of the existence thereof,” made within the twenty-one years by the owner of the premises, subject to such charge. It is very clear, therefore, that if the person claiming payment of such charge or lien is able to show neither a claim or demand of payment made by him on the owner of such real estate, nor a payment upon or an acknowledgment of the existence of such lien or charge by such owner within the statutory period, then the act operates to raise a conclusive presumption of the release or extinguishment of the demand, and declares that it shall “thereafter he irrecoverable.” [494] Nor is it necessary to plead this act. It is a defence under the general issue, and may he set up before an auditor where no formal pleadings are provided for; and, unless the claimant makes the proof of formal demand, or part payment, or other explicit acknowledgment of the existence of the lien asserted, within the time fixed, the act extinguishes the claim. Proof of mere non-payment is not enough. The non-payment must be accounted for consistently with a positive assertion of the demand on the one hand, or an explicit acknowledgment on the other. In this case it appeared that Silas Wingett had been owner and occupant of the farm for more than twenty-one years. The legacies had remained due all that time. Before the legatees could come in on the fund, it was incumbent on them to show their formal demand of payment made upon Silas, or his part payment or acknowledgment, while still the owner of the farm, of its liability to this charge. Failing to do this the act became operative upon the legacies and they became “thereafter irrecoverable.” Judgment affirmed.