Beck, J.
1. limitation, Stature of : evidence of defendant: pleading. I. The several errors assigned by appellant’s counsel may be resolved into these two, namely: First, the admission, under the state of the pleadings, x c> / of defendant Patton’s evidence, to prove that , the cause of action still justly subsists; second, in finding from the evidence that the cause of action still justly subsists, and rendering judgment for plaintiff. It is insisted by appellant’s counsel, that inasmuch as the [536]*536plaintiff in his petition does not aver that he will show by the testimony of defendant that the cause of action still justly subsists, he should not have been permitted to introduce the defendant as a witness to prove that fact. Upon this view is based the first assignment of errors as given above. It will be unnecessary to discuss or determine the point thus made, as in our opinion, the objection raised in the second assignment of errors, as above stated, is decisive of the case. To this one only will we direct attention.
2. — indebtedness of defenciant must affirmatively appear. II. Revision, section 2742, is in these words: “ In actions founded upon contract the above limitations shall not apply, if from the answer of the defend-1 r J ' ant, or from his testimony as a witness it ' appears affirmatively, that the cause of action still justly subsists.” In order to defeat the bar created by the statute, under the provision of this section, it must be made to appear affirmatively, from either the answer or testimony of the defendant, that the cause of action still justly subsists. From this we understand, that the answer or testimony of defendant must show that the cause of action has not been satisfied or discharged, if it in fact ever existed; that if it had a valid existence at any time, it has not thereafter been deprived of such existence; that no act has been performed by the parties which deprives the cause of action of its binding force and obligation. These facts being shown, it may be said to “ still subsist.” But it must be shown to “ still justly subsist.” By this we understand, that a legal existence or “ subsistence ” is not sufficient; it must be an existence, a subsistence, in harmony with justice, and not merely supported by technical rules of law. If so supported, and yet is contrary to justice and equity, it cannot be said to “justly subsist.” It will not do to show a formal subsistence, a technical existence, or such [537]*537a cause of action as by tbe strict rules of law will be supported; it must be also in accordance with justice and equity. Neither will the cause of action be said to justly subsist if it was inequitable, unconscionable, or illegal in its inception. Robey et al. v. Knowlton, 23 Iowa, 544.
It must “ appear affirmatively ” that the cause of action still justly subsists ; that is, its existence must not be presumed under mere naked rules of evidence recognized by the law, or inferred from the acts of the party, or from his silence. The admission of the defendant, either in his answer or in his testimony, to the just subsistence of the cause of action, must be affirmative. This is in accordance with the true meaning and force of the words used in the statute.
The view taken by plaintiff’s counsel of this statute, and the construction he contends for, would practically defeat its operation. Briefly, they are these, or rather they, in effect, produce these results, and lead to these conclusions: The contracts upon which the suit is founded are evidence of the indebtedness, the cause of action, which will be presumed justly to subsist, until shown by defendant’s testimony to be discharged. The testimony is to be interpreted and considered as other evidence; if it fails to prove, in the estimation of the court or jury, the discharge of the cause of action, it must be taken as still justly subsisting. The error in this view is this : the defendant is thereby required to show affirmatively, in order to have the benefit of the statute, that the cause of action has been discharged, or, in other words, that it does not justly subsist, — a vain and absurd thing, for he could defeat the action upon such testimony, without the statute. But, according to the true interpretation of the statute, the plaintiff must show affirmatively, by the testi[538]*538mony of the defendant, that the cause of action does still justly subsist.
Applying these' principles to the evidence of defendant, we conclude that the cause of action is not affirmatively shown thereby still justly to subsist. It may be that, upon an issue whether the cause of action was discharged, the evidence would fail to show that fact; it certainly fails to show affirmatively that the cause of action still justly subsists, and that is the issue upon which it was admitted and which is alone to be determined.
It will be observed that defendant in his testimony makes no allusion to the note described in the petition, and which is, in part, the foundation of the action. His sworn answer to the original petition was read in evidence to show that the cause of action, so far as the note is concerned, still justly subsists. Without determining whether the answer was properly received in evidence, we are of the opinion that it fails to prove affirmatively the just subsistence of the cause of action upon the note. It avers that the note was executed by one of the partners for his individual debt, and that the firm received no consideration whatever for it. This affirmatively denies the just subsistence of the cause of action by the denial that it ever did justly exist, and fails, therefore, to take the case out of the operation of the statute. Roby et al. v. Knowlton, 23 Iowa, 544.
It is argued by appellant’s counsel, that the finding of facts by the District Court in this case must be regarded by this court, as the verdict of a jury, presumptively correct, and that, to justify a reversal of the judgment, this presumption must be overcome by the record showing clearly and satisfactorily that the finding is contrary to the evidence. Without determining whether in this case, and cases of like character, such presumption exists in favor of the finding of the court, we are of the opinion [539]*539that, even, admitting the rule, the evidence overcomes the presumption and makes it clearly appear that the judgment of the court is contrary thereto. It may be remarked that there is no conflict in the evidence. Patton was the only witness introduced .by plaintiff to establish the facts necessary to take the case oxit of the statute of limitations. Upon his evidence alone was that question decided, and there is no other point of conflict in the case.
Beversed.
Dillon, Ch. J.
Upon a careful examination of the record, I am of opinion that the judgment of the court below ought to be reversed. I concur in the result reached in the opinion of my brother Beck, but not in all respects in the view he takes of section 2742 of the Bevision. My idea of the statute as applied to the case is this: More than ten years had elapsed after the cause of action had accrued, and hence, grima facie, the plaintiff’s action is barred. The defendant can rely upon the statute as a complete defense. He need show nothing more than the lapse of time. This lapse of time appearing, the plaintiff fails unless he can remove the bar of the statute. He sought to do this under section-2742.
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Beck, J.
1. limitation, Stature of : evidence of defendant: pleading. I. The several errors assigned by appellant’s counsel may be resolved into these two, namely: First, the admission, under the state of the pleadings, x c> / of defendant Patton’s evidence, to prove that , the cause of action still justly subsists; second, in finding from the evidence that the cause of action still justly subsists, and rendering judgment for plaintiff. It is insisted by appellant’s counsel, that inasmuch as the [536]*536plaintiff in his petition does not aver that he will show by the testimony of defendant that the cause of action still justly subsists, he should not have been permitted to introduce the defendant as a witness to prove that fact. Upon this view is based the first assignment of errors as given above. It will be unnecessary to discuss or determine the point thus made, as in our opinion, the objection raised in the second assignment of errors, as above stated, is decisive of the case. To this one only will we direct attention.
2. — indebtedness of defenciant must affirmatively appear. II. Revision, section 2742, is in these words: “ In actions founded upon contract the above limitations shall not apply, if from the answer of the defend-1 r J ' ant, or from his testimony as a witness it ' appears affirmatively, that the cause of action still justly subsists.” In order to defeat the bar created by the statute, under the provision of this section, it must be made to appear affirmatively, from either the answer or testimony of the defendant, that the cause of action still justly subsists. From this we understand, that the answer or testimony of defendant must show that the cause of action has not been satisfied or discharged, if it in fact ever existed; that if it had a valid existence at any time, it has not thereafter been deprived of such existence; that no act has been performed by the parties which deprives the cause of action of its binding force and obligation. These facts being shown, it may be said to “ still subsist.” But it must be shown to “ still justly subsist.” By this we understand, that a legal existence or “ subsistence ” is not sufficient; it must be an existence, a subsistence, in harmony with justice, and not merely supported by technical rules of law. If so supported, and yet is contrary to justice and equity, it cannot be said to “justly subsist.” It will not do to show a formal subsistence, a technical existence, or such [537]*537a cause of action as by tbe strict rules of law will be supported; it must be also in accordance with justice and equity. Neither will the cause of action be said to justly subsist if it was inequitable, unconscionable, or illegal in its inception. Robey et al. v. Knowlton, 23 Iowa, 544.
It must “ appear affirmatively ” that the cause of action still justly subsists ; that is, its existence must not be presumed under mere naked rules of evidence recognized by the law, or inferred from the acts of the party, or from his silence. The admission of the defendant, either in his answer or in his testimony, to the just subsistence of the cause of action, must be affirmative. This is in accordance with the true meaning and force of the words used in the statute.
The view taken by plaintiff’s counsel of this statute, and the construction he contends for, would practically defeat its operation. Briefly, they are these, or rather they, in effect, produce these results, and lead to these conclusions: The contracts upon which the suit is founded are evidence of the indebtedness, the cause of action, which will be presumed justly to subsist, until shown by defendant’s testimony to be discharged. The testimony is to be interpreted and considered as other evidence; if it fails to prove, in the estimation of the court or jury, the discharge of the cause of action, it must be taken as still justly subsisting. The error in this view is this : the defendant is thereby required to show affirmatively, in order to have the benefit of the statute, that the cause of action has been discharged, or, in other words, that it does not justly subsist, — a vain and absurd thing, for he could defeat the action upon such testimony, without the statute. But, according to the true interpretation of the statute, the plaintiff must show affirmatively, by the testi[538]*538mony of the defendant, that the cause of action does still justly subsist.
Applying these' principles to the evidence of defendant, we conclude that the cause of action is not affirmatively shown thereby still justly to subsist. It may be that, upon an issue whether the cause of action was discharged, the evidence would fail to show that fact; it certainly fails to show affirmatively that the cause of action still justly subsists, and that is the issue upon which it was admitted and which is alone to be determined.
It will be observed that defendant in his testimony makes no allusion to the note described in the petition, and which is, in part, the foundation of the action. His sworn answer to the original petition was read in evidence to show that the cause of action, so far as the note is concerned, still justly subsists. Without determining whether the answer was properly received in evidence, we are of the opinion that it fails to prove affirmatively the just subsistence of the cause of action upon the note. It avers that the note was executed by one of the partners for his individual debt, and that the firm received no consideration whatever for it. This affirmatively denies the just subsistence of the cause of action by the denial that it ever did justly exist, and fails, therefore, to take the case out of the operation of the statute. Roby et al. v. Knowlton, 23 Iowa, 544.
It is argued by appellant’s counsel, that the finding of facts by the District Court in this case must be regarded by this court, as the verdict of a jury, presumptively correct, and that, to justify a reversal of the judgment, this presumption must be overcome by the record showing clearly and satisfactorily that the finding is contrary to the evidence. Without determining whether in this case, and cases of like character, such presumption exists in favor of the finding of the court, we are of the opinion [539]*539that, even, admitting the rule, the evidence overcomes the presumption and makes it clearly appear that the judgment of the court is contrary thereto. It may be remarked that there is no conflict in the evidence. Patton was the only witness introduced .by plaintiff to establish the facts necessary to take the case oxit of the statute of limitations. Upon his evidence alone was that question decided, and there is no other point of conflict in the case.
Beversed.
Dillon, Ch. J.
Upon a careful examination of the record, I am of opinion that the judgment of the court below ought to be reversed. I concur in the result reached in the opinion of my brother Beck, but not in all respects in the view he takes of section 2742 of the Bevision. My idea of the statute as applied to the case is this: More than ten years had elapsed after the cause of action had accrued, and hence, grima facie, the plaintiff’s action is barred. The defendant can rely upon the statute as a complete defense. He need show nothing more than the lapse of time. This lapse of time appearing, the plaintiff fails unless he can remove the bar of the statute. He sought to do this under section-2742. That provides that the limitation of ten years “ shall not apply, if, from the answer of the defendant or from his testimony as a witness, it affirmatively appears that the cause of action still justly subsists.” If it does not thus appear, the bar of the statute stands, and the plaintiff fails. In my judgment, it does not affirmatively appear from the evidence of Patton, the appellant, or from his answer, that the cause of action still justly subsists. "What does Patton testify to? He shows that he was in possession of a stock of goods, and owed various persons, including Mr. Hooper, in England, who drew the bills in suit. One Clark had [540]*540procured Hooper to make the advances to Howells, Patton & Co. The drafts in suit drawn by Hooper were sent from England for acceptance through Clark. These were, at some time, indorsed to Howells, the plaintiff. Clark is the plaintiff’s brother-in-law, and acted for Hooper. He represented himself as the agent of Hooper, and officiated as his agent in settling. Clark, finding Patton in possession of the goods, urged him (so Patton testifies) to sell out to Keever. Patton also testifies that Clark agreed that if Patton would sell and deliver the stock of goods to Keever, he would “ take Keever for the payment of these claims.”
It is by no means certain that Keever was liable on these drafts, and that by this arrangement, whereby Keever assumed to pay them (as he did by the written contract introduced in evidence), Hooper or the plaintiff obtained no new name or security. The drafts were drawn in April, 1854, on Howells, Patton & Co., of Cincinnati, Ohio. At that time Keever was not a member of the firm of Howells, Patton & Co., and hence the acceptance of the bills in suit, did not necessarily bind him. He had sold out his interest in that firm, and ceased, as between him and his copartners, to be a member of it the September previous to the drawing and acceptance of the bills.
True, the evidence shows that Keever had been a member of the firm of Howells, Patton & Co., and that no notice of the dissolution of the firm had been given to creditors generally. But for aught appearing in the record, Hooper may never have known that Keever had been a member of the firm, or he may have known that he was not a member of it at the time he extended the credit and drew the bills. Hence, I say, it is not certain that, when Keever bought out Patton, in July, 1854, and agreed in writing to pay the Hooper debt, the latter [541]*541acquired no new name nor any additional rights. But, whether Keever was or was not before liable on these bills, I hold that if Clark was the agent of Hooper, or of the plaintiff (if he had then acquired the bills), and if as such agent he had authority to agree with Patton that if he, Patton, would sell out his stock of goods (worth, as shown by the written contract, the sum of $16,212) to Keever, that Hooper or the plaintiff would look to Keever for payment, and Patton, acting on this assurance, sold and delivered the goods to Keever, who afterward became bankrupt, these being the facts, I would hold that, after the limitation period had elapsed, the debt as to Patton did not, within the meaning of our statute, “ still justly subsist ” against him. But it is said that the evidence does not fully show that Mr. Clark had authority to make such an agreement. But, as I view the statute, that is not the true inquiry. It does not show that he had no such authority. There are circumstances tending to show that he was the agent of Hooper or the plaintiff, such as his connection with the creation of the debt, his procuring the acceptance, his probable possession of the paper, the subsequent payments received by plaintiff from Keever, and the long delay of more than thirteen years to bring suit against Patton.
Therefore, as it does not clearly appear that the arrangement whereby Patton was released, was without authority ; as Patton acted on that arrangement and parted with his property on the faith of it; as more than ten years afterward elapsed and no claim was made against Patton, it is my judgment that he might rely on the statute of limitations, and that plaintiff failed to show affirmatively by him that his cause of action still justly existed.
Thus viewing the statute and the case, it is not essential, as I see, to inquire whether the claim of plaintiff must, in order to defeat the bar of the statute, be one [542]*542which is upheld by justice and equity, as well as by the rules of law. That question is discussed by my brothers Beck and Wright, but as it does not seem to me to be necessarily in the case, I refrain from the expression of any opinion concerning it.
I hold that the bar of the statute was not removed by Mr. Patton’s evidence, not because the plaintiff must show a just claim, in addition to showing one that is legal or equitable, but upon the ground that prima facie the statute protects the defendant; he may stand upon the lapse of time, and he need show nothing more. The statute is one of repose, and presumes he has paid the debt, or that the evidence of his defense may have perished; the burden is on the plaintiff to take down the bar of the statute; this he can do only by the defendant’s testimony, or by his answer; these, that is the facts stated, the plaintiff is bound to accept as verities, as he can neither impeach the witness nor contradict his testimony by other evidence; and even the facts stated by the defendant are not sufficient to defeat the statute, unless it thereby affirmatively appears — that is, clearly, expressly, or by fair deduction, beyond reasonable controversy— that the cause of action still exists in its original force, against the defendant. I do not deny that the court or jury may, as in other cases, weigh the testimony of the defendant ; but I do insist that it must, when weighed, make out a case against him with affirmative directness. When the limitation period has elapsed, the plaintiff’s case is within the grasp of the statute. It must be wrested from this grasp by the plaintiff. For this purpose he is compelled to rely upon the facts stated or admitted of the defendant. He must take these facts just as he gets them. If he states that the plaintiff made an agreement with him, whereby he released him, the fact, thus stated, must be regarded as true. The plaintiff [543]*543cannot say, such a. story is most improbable, and ought not to be believed, and as this is the only ground on which the defendant relies to show a discharge of the debt, therefore it affirmatively appears, by his testimony, that the cause of action still justly subsists.
It does not thus affirmatively appear within the meaning of the statute. The prior decisions of this court have recognized, and, as I think, properly so, this word “ affirmatively ” as one which is important in evincing the intention of the legislature to be that the statute bar should stand unless a plain and clear case be made against the defendant by his own evidence or the admissions in his answer.
A doubtful or mixed case for the plaintiff will not avail to rescue a case from the operation of the statute.
I concur in the judgment of reversal.