Opinion,
Mr. Justice Clark :
This is a proceeding by scire facias upon a recognizance, taken in the Orphans’ Court of Fulton county, in the partition of the real estate of Joseph Gregory, who died intestate some time prior to the year 1856. The real estate of the decedent was on the 13 January, 1866, accepted at the valuation by J ames Gregory, and the recognizance in suit was given to secure the share of John Gregory, who, at that time and until his decease in 1878, resided in the state of Indiana.
No suit was brought, nor does it appear that any specific demand for payment of the money secured by the recognizance was made, until after the death of the conusor, James Gregory,* in 1887. A period of twenty-one years and three months having intervened, the executors of the last will and testament of James Gregory, deceased, interpose the presumption of payment which arises from this great length of time. Their contention is that this delay in the collection of the recognizance has not been in any way explained, and that the evidence does not establish any facts, by way of admission or otherwise, sufficient to rebut the presumption that the debt has been discharged.
All debts excepted out of° the statute of limitations, unclaimed and unrecognized for twenty years, in the absence of sufficient explanatory evidence, are presumed to have been paid. This presumption is an artificial and arbitrary rule of the law, derived by analogy from the English statute of limitations ; it originated in equity, but was afterwards engrafted into the common law, and has since been steadily maintained. It is not, like the statute of limitations, a bar to an action on the original contract; therefore, a new promise is not necessary to sustain the suit. Any competent evidence which tends to [622]*622show that the debt is in fact unpaid is admissible for that purpose. The evidence may consist of the defendant’s admissions made to the creditor himself: Eby v. Eby, 5 Pa. 435; or to his agent or even to a stranger: Morrison v. Funk, 23 Pa. 423; Reed v. Reed, 46 Pa. 239; but an admission will not be as readily implied from language casually addressed to a stranger, as when addressed to the creditor in reply to a demand for the debt: Bentley’s Appeal, 99 Pa. 500. It is of no consequence that the admission of non-payment is accompanied by a refusal to pay; the action is not founded on a new promise, but on the original indebtedness; the question, as against the presumption, is whether or not the debt is in fact unpaid.
The facts and circumstances relied on to rebut the presumption must necessarily be within twenty years before suit is brought, and, as the recollection of the exact words and import of an oral admission must necessarily become more indistinct with the lapse of years, the force of such an admission will in general be lessened as the time from its occurrence increases. On the other hand, after twenty years, the presumption will gather strength with each succeeding year, and the evidence to overthrow it must of course be correspondingly increased. •After what lapse of time beyond twenty years, if ever, this presumption which is disputable will be conclusive has never been determined, and as the law now stands each case must stand on its particular facts and circumstances. It is not required that the same precision and particularity of proof shall in all respects be observed, as has been required to remove the bar ,of the statute of limitations, but as the presumption of payment after twenty years is a strong one: Kline v. Kline, 20 Pa. 503, the evidence to rebut it must be satisfactory and convincing : Peters’s Appeal, 106 Pa. 340; Eby v. Eby, 5 Pa. 435; Sellers v. Holman, 20 Pa. 324; especially is this so when the suit is not brought until after the defendant’s death; if must, according to the cases, carry conviction to the mind of the court, that if the facts alleged are true, the matters in issue are definitely and distinctly established. In a case like this, the defendant stands upon a presumption of law which is binding alike upon the court and jury, until invalidated by proof; and the plaintiff in rebuttal upon a presumption of fact only, which he claims to arise out of the evidence: whether or not the [623]*623matters sought to be established are true is a question for the jury, but whether the facts and circumstances relied on, if true, would legitimately give rise to the presumption of fact referred to, is necessarily a question of law for the court.
In Delany v. Robinson, 2 Wh. 506, the trial judge directed the jury that the testimony of a particular witness, if true in fact, rebutted the presumption of payment in point of law, and that as there was no evidence in the cause which purported to contradict him, the question depended on his credibility, which was left to the jury. This was assigned for error, and Chief J ustice Gibson, on a rule for a new trial, said : “ The inference of payment from lapse of time is a presumption of law, and the subject of legal direction; every jurist, whether judge or text writer, treats of it as such. The rebuttal of it by circumstances left to the jury for the truth of the fact only, is also for the court.” To the same effect is the language of the same learned judge in Backestoss v. Commonwealth, 8 W. 286, where, referring to the contrary doctrine of McLean v. Finley, 2 P. & W. 97, and Summerville v. Holliday, 1 W. 507, he says: “ A different rule, however, was subsequently laid down in Delany v. Robinson, 2 Wh. 503, and recognized in Diehl v. Ihrie, 3 Wh. 149, for the justness of which there are powerful arguments. Presumptions from lapse of time being founded in policy and convenience, are in effect judicial statutes of limitation, which, as they are mixed of fact and law, are to be dealt with, not exclusively by the court or the jury, but by each according to its function and within the limit of its province. The very period is borrowed from a statute ; and what shall suspend the running of such a statute has always been for the court, because it is an unmixed question of law, which admits not of the action of a jury, just as an unmixed question of fact admits not of the action of a court. But from the decision of a mixed question, the court has as much right to exclude the jury as the jury have to exclude the court; so that to act legitimately they must act in unison, each in its sphere, the jury pronouncing the facts, and the court assigning them their consequences.”
In McQuesney v. Hiester, 33 Pa. 435, the action was for arrears of ground-rent for twenty-eight years. It appeared in the defendant’s proofs that the parties under whom the defendant claimed had entered into an agreement, with other lot [624]*624owners, not to pay until the plaintiff established his right, but to resist payment, and that they did resist payment. The court thereupon ruled, as matter of law, however, submitting the question to the jury, that from these facts thus established the delay was explained and accounted for, and that no legal presumption of payment arose. So in Reed v. Reed, 46 Pa. 239, Mr. Justice Strong says: “ It must be borne in mind that the presumption from lapse of time is not that there is no contract between the parties. If it were, proof of a new contract might be necessary. It is only an inference that the debtor has done something to discharge the debt, to wit, that he has made payment ; whilst it is rebutted by simple proof that payment has not been made, and, the facts being established, whether they are sufficient to rebut it is a question for the court, and not for the jury.
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Opinion,
Mr. Justice Clark :
This is a proceeding by scire facias upon a recognizance, taken in the Orphans’ Court of Fulton county, in the partition of the real estate of Joseph Gregory, who died intestate some time prior to the year 1856. The real estate of the decedent was on the 13 January, 1866, accepted at the valuation by J ames Gregory, and the recognizance in suit was given to secure the share of John Gregory, who, at that time and until his decease in 1878, resided in the state of Indiana.
No suit was brought, nor does it appear that any specific demand for payment of the money secured by the recognizance was made, until after the death of the conusor, James Gregory,* in 1887. A period of twenty-one years and three months having intervened, the executors of the last will and testament of James Gregory, deceased, interpose the presumption of payment which arises from this great length of time. Their contention is that this delay in the collection of the recognizance has not been in any way explained, and that the evidence does not establish any facts, by way of admission or otherwise, sufficient to rebut the presumption that the debt has been discharged.
All debts excepted out of° the statute of limitations, unclaimed and unrecognized for twenty years, in the absence of sufficient explanatory evidence, are presumed to have been paid. This presumption is an artificial and arbitrary rule of the law, derived by analogy from the English statute of limitations ; it originated in equity, but was afterwards engrafted into the common law, and has since been steadily maintained. It is not, like the statute of limitations, a bar to an action on the original contract; therefore, a new promise is not necessary to sustain the suit. Any competent evidence which tends to [622]*622show that the debt is in fact unpaid is admissible for that purpose. The evidence may consist of the defendant’s admissions made to the creditor himself: Eby v. Eby, 5 Pa. 435; or to his agent or even to a stranger: Morrison v. Funk, 23 Pa. 423; Reed v. Reed, 46 Pa. 239; but an admission will not be as readily implied from language casually addressed to a stranger, as when addressed to the creditor in reply to a demand for the debt: Bentley’s Appeal, 99 Pa. 500. It is of no consequence that the admission of non-payment is accompanied by a refusal to pay; the action is not founded on a new promise, but on the original indebtedness; the question, as against the presumption, is whether or not the debt is in fact unpaid.
The facts and circumstances relied on to rebut the presumption must necessarily be within twenty years before suit is brought, and, as the recollection of the exact words and import of an oral admission must necessarily become more indistinct with the lapse of years, the force of such an admission will in general be lessened as the time from its occurrence increases. On the other hand, after twenty years, the presumption will gather strength with each succeeding year, and the evidence to overthrow it must of course be correspondingly increased. •After what lapse of time beyond twenty years, if ever, this presumption which is disputable will be conclusive has never been determined, and as the law now stands each case must stand on its particular facts and circumstances. It is not required that the same precision and particularity of proof shall in all respects be observed, as has been required to remove the bar ,of the statute of limitations, but as the presumption of payment after twenty years is a strong one: Kline v. Kline, 20 Pa. 503, the evidence to rebut it must be satisfactory and convincing : Peters’s Appeal, 106 Pa. 340; Eby v. Eby, 5 Pa. 435; Sellers v. Holman, 20 Pa. 324; especially is this so when the suit is not brought until after the defendant’s death; if must, according to the cases, carry conviction to the mind of the court, that if the facts alleged are true, the matters in issue are definitely and distinctly established. In a case like this, the defendant stands upon a presumption of law which is binding alike upon the court and jury, until invalidated by proof; and the plaintiff in rebuttal upon a presumption of fact only, which he claims to arise out of the evidence: whether or not the [623]*623matters sought to be established are true is a question for the jury, but whether the facts and circumstances relied on, if true, would legitimately give rise to the presumption of fact referred to, is necessarily a question of law for the court.
In Delany v. Robinson, 2 Wh. 506, the trial judge directed the jury that the testimony of a particular witness, if true in fact, rebutted the presumption of payment in point of law, and that as there was no evidence in the cause which purported to contradict him, the question depended on his credibility, which was left to the jury. This was assigned for error, and Chief J ustice Gibson, on a rule for a new trial, said : “ The inference of payment from lapse of time is a presumption of law, and the subject of legal direction; every jurist, whether judge or text writer, treats of it as such. The rebuttal of it by circumstances left to the jury for the truth of the fact only, is also for the court.” To the same effect is the language of the same learned judge in Backestoss v. Commonwealth, 8 W. 286, where, referring to the contrary doctrine of McLean v. Finley, 2 P. & W. 97, and Summerville v. Holliday, 1 W. 507, he says: “ A different rule, however, was subsequently laid down in Delany v. Robinson, 2 Wh. 503, and recognized in Diehl v. Ihrie, 3 Wh. 149, for the justness of which there are powerful arguments. Presumptions from lapse of time being founded in policy and convenience, are in effect judicial statutes of limitation, which, as they are mixed of fact and law, are to be dealt with, not exclusively by the court or the jury, but by each according to its function and within the limit of its province. The very period is borrowed from a statute ; and what shall suspend the running of such a statute has always been for the court, because it is an unmixed question of law, which admits not of the action of a jury, just as an unmixed question of fact admits not of the action of a court. But from the decision of a mixed question, the court has as much right to exclude the jury as the jury have to exclude the court; so that to act legitimately they must act in unison, each in its sphere, the jury pronouncing the facts, and the court assigning them their consequences.”
In McQuesney v. Hiester, 33 Pa. 435, the action was for arrears of ground-rent for twenty-eight years. It appeared in the defendant’s proofs that the parties under whom the defendant claimed had entered into an agreement, with other lot [624]*624owners, not to pay until the plaintiff established his right, but to resist payment, and that they did resist payment. The court thereupon ruled, as matter of law, however, submitting the question to the jury, that from these facts thus established the delay was explained and accounted for, and that no legal presumption of payment arose. So in Reed v. Reed, 46 Pa. 239, Mr. Justice Strong says: “ It must be borne in mind that the presumption from lapse of time is not that there is no contract between the parties. If it were, proof of a new contract might be necessary. It is only an inference that the debtor has done something to discharge the debt, to wit, that he has made payment ; whilst it is rebutted by simple proof that payment has not been made, and, the facts being established, whether they are sufficient to rebut it is a question for the court, and not for the jury. The presumption is one drawn by the law; it is from a given state of facts, and whether it exists or not is necessarily for the court If authority is needed for so plain a proposition, it may be found in Delany v. Robinson, 2 Wh. 503, where it was squarely so decided.” To the same effect is Sellers v. Holman, 20 Pa. 321; Bentley’s Appeal, 99 Pa. 500; Michener v. Michener, 17 W. N. 266; Lash v. Von Neida, 109 Pa 207; Biddle v. Girard N. Bank, 109 Pa. 349; Boyd v. Grant, 13 S. & R. 124; Ankeny v. Penrose, 18 Pa. 193. Therefore, in Beale v. Kirk, 84 Pa. 415, our brother Paxson said: “ The facts being established, whether they are sufficient to rebut it is a question for the court, not the jury; the presumption is only drawn by the law itself from a given state of facts, and whether it exists or not is necessarily for the court: ” citing Reed v. Reed, 46 Pa. 239; Delany v. Robinson, 2 Wh. 503. This declaration is repeated in Peters’s Appeal, 106 Pa. 340.
It is undoubtedly true that by the earlier cases in this state: McLean v. Finley, supra; Summerville v. Holliday, supra, where there was any evidence to account for the delay it was the duty of the court to refer it to the jury as an open question of fact to determine as to actual payment; but this doctrine as we have seen has been practically abandoned; the rule to be drawn from the later cases is in accordance with views expressed in the dissenting opinion of Mr. Justice Kennedy in Summerville v. Holliday, where the origin, history, and proper application of the rule is most ably and elaborately considered.
[625]*625It may be difficult, perhaps, to lay down any general rule by which the facts of each case may bo determined, as matter of law, to be sufficient or insufficient to prevent the presumption of payment from arising, or to rebut it after it has arisen; but it is certainly consistent with the nature and design of this provision of the law that its application should be directed by the court rather than by the jury.
Applying these principles to the case now under consideration, was the evidence sufficient to justify the court in referring the case to the jury to determine as to the actual payment? James Gregory was the administrator of the estate of Joseph Gregory, deceased, and had settled his account, which, as confirmed by the Orphans’. Court, on 24 October, 1859, showed a balance of $350.12 due to the accountants. The recognizance was entered into on January 13,1866. Peter Gordon testified, in substance, that about the year 1875 he had a conversation with James Gregory, in which James said he had not heard from John lately; he thought John was dead. Gordon then' asked him whether there was not a little coming to John from his brother Joseph’s estate, and James replied that it “ had never been fairly settled. James said he didn’t know where he was; hadn’t heard from him for so long.” Gordon states the conversation in these words: “ I says, isn’t there something coming to John from his brother Joseph’s estate ? Says he, I don’t remember whether he said it was unsettled or whether it Avasn’t fairly settled, something that way; he said it hadn’t been fairly settled.” What had not been fairly settled ? Was it the personal estate or the recognizance? Apart from the' legal presumption that the recognizance was paid, there is not; the slightest proof that any settlement of it had ever been attempted; the reference would appear to be to something which had been settled but not fairly settled. True, the witness was not able to remember Avhether James said that John’s share had “ never been fairly settled,” or was “ unsettled,” but the burden of proof was upon the plaintiff, and we are not, Avithout reason, to accept that alternative which may happen to be most favorable to him; but the testimony of Gordon may be read in the light of the other evidence. William Gordon testified as follows: “In August, 1886, James Gregory came to my place; he talked about going away; I told him he shouldn’t be [626]*626in a hurry, he didn’t have much to bother him. He said he .wanted to go back home, that he had got a letter from his brother John’s son, and he hadn’t wrote to him; hadn’t answered his letter and was anxious to get back and write to him to know who his mother was. He said his brother John had been dead about eight years; he said he had wrote to him to know who his mother was — to his brother John’s son. I didn’t ask him at all how or when he owed him anything, but he said his brother Joe had paid a judgment for John a good many years back, and he didn’t know but one would balance the other. He said if he was to drop off he didn’t hardly know how his business would be settled up. He said the soil had written in regard to the share that his father claimed in his brother Joseph’s estate.” Catharine Gregory testified that she had a conversation with James Gregory (the time was not 'fixed) ; he said: “ he had got a letter from one of John Gregory's héirs, that they wanted their father’s interest in Joseph Gregory’s estate, and then he said he wanted to be sure it was one of John Gregory’s heirs, and he said he had wrote back to ask him to tell who his mother was before she was married to John Gregory. Last August a year he came to visit us again; he said he had got an answer from John Gregory’s heirs and he was certain now it was one of John Gregory’s heirs; that he intended to send a little money sometime; he said the heirs had wrote to him they wanted.their father’s interest in •Joseph Gregory’s estate.” Moses Peck testifies that he had a conversation with James Gregory; he says, “ He (Gregory) got a letter; the letter came to our place; the letter was kept for him until he came. He handed it to Gus Robinson and he read it. He says, when he got to the place where it says, ‘ grandfather’s estate,’ he says, ‘ he is mistaken, it is brother Joseph,’ says he. ‘His grandfather was dead before my brother John was married.’ That was about all. Says he, ‘ Uncle James, I understand you are administrator of grandfather’s estate.’ He wanted to know something about their affairs, and Mr. Gregory said he was mistaken it was his brother Joe. He said he wanted to write and answer it and didn’t know how to write. He said he didn’t think there would be anything coming to him, for he said his brother Joseph had paid some money for John or loaned him some,” etc.
[627]*627This testimony would seem to have reference to the settlement of John’s share in the personalty, for the debt secured by the recognizance was James’s individual debt to John; what Joseph had loaned to or paid for John could not be considered in the adjustment of the recognizancethat was involved in the administration • “one would balance the other” only in the settlement with James’s administrator. Although the administrator’s account filed purported to be the final account, the testimony may readily be taken in the sense that James thought it had not been “ fairly settled; ” “ he had a heap of trouble about it and if he was to drop off he didn’t hardly know how his business would be settled up.”
The testimony is vague, uncertain, and equivocal in meaning. It is not in our opinion of that satisfactory and convincing character which would justify its submission to the jury in rebuttal of the presumption of payment which the law raises when a debt of record is unclaimed and without recognition for a period of twenty-one years and three months. The fact that John Gregory resided in the state of Indiana is worthy of consideration on the general question, but standing alone does not explain this great delay. Absence in a foreign country, outside of the United States, would be a fact of more significance ; but whether even that would be sufficient to repel the presumption would depend, perhaps, upon the facts and circumstances of the case.
The rule of law invoked by the defendants is a salutary and useful one, especially in cases where the action is delayed not only beyond the period of twenty years but until after the debt- or’s death. In England, by the statute of 3 and 4 Will. IV. c. 42, section 3, and in New York under the Revised Statutes, and perhaps in other states, this period of twenty years has been established as a limitation to actions upon debts of record, by specialty, etc., and we think it wise, in the absence of any such statute, that the force of this presumption shall not be defeated, excepting where the evidence to that effect is of a satisfactory and convincing character.
The judgment is reversed.