Courtney v. Staudenmayer

The opinion of the court was delivered by Martin, C. J. •: A period of 27 years elapsed from the maturity of the last note and the indorsement of interest paid thereon before any attempt was made to recover upon the indebtedness, or to foreclose the mortgage, yet the action was not barred by our Kansas statute of limitations because of the non-residence and absence of the defendants (Civil Code, § 21), and the South Carolina statute was not pleaded. At the common law a presumption of payment arises after the lapse of 20 years, and the principal question in this case is whether such presumption obtains in this state, notwithstanding the statute of limitations. It is claimed by the plaintiff in error that the common law is adopted in this state only in aid of the general statutes, and as modified by constitutional and statutory law, judicial decisions, and the condition and wants of the people (Gen. Stat: 1889, ¶ 7281), and that the doctrine of the presumption of payment from the lapse of time is inconsistent with our statutes of limitation, and therefore cannot be recognized. In England, however, this presumption arises, and is given effect, in the courts both of law and equity, [397] notwithstanding the limitation acts. In the ca'se of Smith v. Clay, decided in 1767, and a report of which maybe found in 3 Brown, 640, Lord Camden said: “A court of equity . . . has always refused its aid to stale demands, where the party .has slept upon his right and acquiesced for a great length of time. . . . Laches and neglect are always discountenanced, and therefore, from the beginning of this jurisdiction, there was always a limitation to suits in this court.” And in Hovenden v. Lord Annesley, 2 Sch. & Lef. 607, 636, Lord Redesdale said, “that every new right of action in equity that accrues to the party, whatever it may be, must be acted upon at the utmost within 20 years.” The federal courts have declared the same doctrine, from an early day down to the present time, refusing, independently of the statute of limitations, to entertain and enforce stale demands. (Piatt v.Vattier, 9 Pet. 405, 416, 417 ; McKnight v. Taylor, 1 How. 161; Bowman v. Wathen, 1 id. 189, 193 ; Speidel v. Henrici, 120 U. S. 377, 387, and cases cited.) The state courts very generally hold the same doctrine. Several of the decisions are cited in the foregoing cases from the supreme court of the United States, and we will refer to a few others, as follows : Cheever v. Perley, 11 Allen, 584; Kellogg v. Dickinson, 147 Mass. 432, 437, and cases cited; Bean v. Tonnele, 94 N. Y. 381, 385, and cases cited ; Matter of Accounting of Neilley, 95 id. 382, 390 ; Lash v. Von Neida, 109 Pa. St. 207; Gregory v. Commonwealth, 121 id. 611; Shubrick v. Adams, 20 S. C. 49, 53; Wright v. Mars, 22 id. 585; Dickson v. Gourdin, 26 id. 391; Stimis v. Stimis, 33 Atl. Rep. (N. J.Eq.) 468. The presumption of payment from lapse of time differs essentially from a statute of limitations. The [398] presumption may be rebutted by sufficient evidence, no matter how long the time may be ; but a statute of limitations cuts off the right of action, although it maybe admitted that no payment has ever been made. The. presumption of payment is based upon the experience of mankind that vouchers, acquittances and evidences of payment are not usually preserved from one generation to another ; that creditors usually desire their own without waiting a score of years upon their debtors ; and that, where there has been no recognition of the claim by the debtor, and the creditor has forborne to assert a right for so long a time, it is most probable that his claim has been in some way satisfied. The cross-petition for foreclosure in this case was in the usual form. No explanation or excuse was given for the long delay in the assertion of any right, and this seems to be necessary under several of the authorities cited. But, if this defect of pleading had been remedied, yet the facts found, and the evidence received and rejected, were insufficient to establish non-payment; and therefore the presumption of payment from lapse of time was properly held by the court below to be effective as a bar to the action, and the judgment must be affirmed. All the Justices concurring.