Pennewill, J.:
—We think that this testimony now offered is not for the purpose of attacking the validity of the consideration of the bond, but is merely a circumstance, for what it is worth, offered for the purpose of showing payment. Whether it does or not, is a question for the jury.
[510]*510George M. Jones, after having testified that as attorney for the Peoples Building and Loan Association of Dover he was familiar with the affairs of said association and also with the judgment in question, was asked the following question: Q,. That judgment as it stands shows that the three-fifths part of it is marked to the use of the Peoples Building and Loan Association. Did they or did they not have any knowledge whatever of that use being marked to them before it was done ?
Hutton, for defendant:—We object to that question as irrelevant; it has nothing to do with the question of payment.
Pennewill, J.:—The record that has been admitted in evidence shows the fact that the transfer was made, and we do not think it is material whether the association had knowledge of the actual transfer or not.
Stephen Slaughter, having testified that he had known George A. Millington for twenty or twenty-three years and had had considerable dealings with him and knew that he owned enough personal property and real estate to have paid a debt of one thousand dollars at any time, was asked the following question : Q,. Was Mr. Millington prompt in the payment of his debts ?
(The above question was objected to by counsel for defendant as irrelevant.)
Pennewill, J.:—We think that is going a little too far. We overrule that question.
James V. McCommons, Clerk of the Peace for Kent County, produced the assessment records of said county for the year 1888, and was asked the following question : Q,. What do you find upon that assessment against George A. Millington?
(Said question was objected to by Mr. Hutton as not the best evidence.)
[511]*511Magee, for plaintiff:—This is notice to this defendant that Mr. Millington had property out of which this money could have collected all these years. It is offered for that purpose, not as evidence to ownership.
Pennewill, J.:—We overrule the objection and admit the evidence.
Samuel L. Shaw, having testified that while he was Sheriff of Kent County in 1898 he sold, under execution process, the personal property and real estate of the defendant, was asked the following question ? Q. Did Thomas O. Culbreth ever owe you any money ?
(This was objected to by counsel for defendant as irrelevant.)
Pennewill, J.:—We think that is not admissible.
Joshua M. Twilley, being produced on behalf of the defendant, was asked by Mr. Magee whether during the last eight or nine years Thomas O. Culbreth made any statement to him as to his financial condition? (This was objected to by counsel for defendant).
Pennewill, J.:—We think that is admissible.
A. He met me on the street one day and asked me to loan him either twenty-five or thirty-five dollars, I don’t know which, and said he wanted that amount to make up a certain amount of money, and that if he could raise the same it would ease him or help him to save his property from being sold, or something of that kind; I don’t remember exactly.
Millard M. Hinckel, another witness for defendant, testified that he knew Thomas O. Culbreth for about fifteen years. Mr. Magee then asked the witness the following question: Q,. Is or is not, or was or was not Thomas O. Culbreth a close collector of indebtedness due to him ?
(Objected to by counsel for defendant as irrelevant.)
[512]*512Magee, for plaintiff: — We insist upon this question. It has been held that evidence that the creditor is in the habit of collecting promptly all indebtedness due to him is admissible to support a claim of payment, together with a lapse of time.
Leiper vs. Erwin, 5 Yerger (Tenn.), 97; Huskey’s Admr. vs. Maples and Sapp, 2 Caldwell (Tenn.), 25.
(After further argument by the respective counsel and the citation of authorities in opposition to the question, the Court rendered the following decision) :
Pennewill, J.:—The Court think that while it may not be competent ordinarily to prove the habits of the creditor for promptly collecting his bills in order to show payment, yet we think that where there has been a long lapse of time, as in this case, and such lapse of time is relied upon to show payment, that such habits may be proven, not for the purpose of establishing insolvency but as tending to show payment, and it may be considered by the jury for that purpose for whatever in their judgment it is worth.
Leiper vs. Irwin, 5 Yerger (Tenn.,) 97; Huskey’s Admr. vs. Maples and Sapp, 2 Caldwell (Tenn.), 25.
A. As far as I know, he always has been,—there at the store in my dealings with him.
John F. Saulsbury, another witness called on behalf of the plaintiff, was asked by Mr. Magee the following question : Q. Do you know the reputation of Thomas O. Culbreth in this community for honesty and fair dealing ?
(Objected to by counsel for defendant as highly improper and inadmissible.)
Pennewill, J.:—We think that question is entirely inadmissible in this case.
(Both oral and documentary evidence were offered on the part of the defendant in rebuttal to the above evidence of the plaintiff, [513]*513tending to show that the defendant in the judgment, George A. Millington, was not in a prosperous financial condition during a part of the period between the time the bond was given by him and his death.)
Plaintiff’s Prayers.
First. That the lapse of time though less than twenty years may be considered as evidence of payment and may, together with other circumstantial evidence of payment, such as ability of the alleged debtor to pay and the stringent financial condition of the alleged creditor, be sufficient to warrant the finding of a verdict that the indebtedness has been paid.
Second. That the Court charge the jury that where the questian of payment relates to a remote period rendering it difficult to apply other than circumstantial evidence of such payment, the evidence of the possession of the debtor of means whereby he could have paid the debt or of his want of means rendering it impossible for him to do so is to be considered by the jury with other circumstances tending to show payment.
Third. That the Court charge the jury that where the creditor is in the habit of collecting promptly all indebtedness due to him it is a circumstance which goes to support a claim of payment ogether with a lapse of time.
Fourth. That if the jury believe that from the lapse of time though less than twenty years, together with the circumstantial evidence of payment such as the ability of the alleged debtor to pay and the stringent financial condition of the alleged creditor, together with other circumstances, the presumption of payment has arisen, then the burden of proof is upon the creditor to show that the debt has not been paid.
Fifth,
Free access — add to your briefcase to read the full text and ask questions with AI
Pennewill, J.:
—We think that this testimony now offered is not for the purpose of attacking the validity of the consideration of the bond, but is merely a circumstance, for what it is worth, offered for the purpose of showing payment. Whether it does or not, is a question for the jury.
[510]*510George M. Jones, after having testified that as attorney for the Peoples Building and Loan Association of Dover he was familiar with the affairs of said association and also with the judgment in question, was asked the following question: Q,. That judgment as it stands shows that the three-fifths part of it is marked to the use of the Peoples Building and Loan Association. Did they or did they not have any knowledge whatever of that use being marked to them before it was done ?
Hutton, for defendant:—We object to that question as irrelevant; it has nothing to do with the question of payment.
Pennewill, J.:—The record that has been admitted in evidence shows the fact that the transfer was made, and we do not think it is material whether the association had knowledge of the actual transfer or not.
Stephen Slaughter, having testified that he had known George A. Millington for twenty or twenty-three years and had had considerable dealings with him and knew that he owned enough personal property and real estate to have paid a debt of one thousand dollars at any time, was asked the following question : Q,. Was Mr. Millington prompt in the payment of his debts ?
(The above question was objected to by counsel for defendant as irrelevant.)
Pennewill, J.:—We think that is going a little too far. We overrule that question.
James V. McCommons, Clerk of the Peace for Kent County, produced the assessment records of said county for the year 1888, and was asked the following question : Q,. What do you find upon that assessment against George A. Millington?
(Said question was objected to by Mr. Hutton as not the best evidence.)
[511]*511Magee, for plaintiff:—This is notice to this defendant that Mr. Millington had property out of which this money could have collected all these years. It is offered for that purpose, not as evidence to ownership.
Pennewill, J.:—We overrule the objection and admit the evidence.
Samuel L. Shaw, having testified that while he was Sheriff of Kent County in 1898 he sold, under execution process, the personal property and real estate of the defendant, was asked the following question ? Q. Did Thomas O. Culbreth ever owe you any money ?
(This was objected to by counsel for defendant as irrelevant.)
Pennewill, J.:—We think that is not admissible.
Joshua M. Twilley, being produced on behalf of the defendant, was asked by Mr. Magee whether during the last eight or nine years Thomas O. Culbreth made any statement to him as to his financial condition? (This was objected to by counsel for defendant).
Pennewill, J.:—We think that is admissible.
A. He met me on the street one day and asked me to loan him either twenty-five or thirty-five dollars, I don’t know which, and said he wanted that amount to make up a certain amount of money, and that if he could raise the same it would ease him or help him to save his property from being sold, or something of that kind; I don’t remember exactly.
Millard M. Hinckel, another witness for defendant, testified that he knew Thomas O. Culbreth for about fifteen years. Mr. Magee then asked the witness the following question: Q,. Is or is not, or was or was not Thomas O. Culbreth a close collector of indebtedness due to him ?
(Objected to by counsel for defendant as irrelevant.)
[512]*512Magee, for plaintiff: — We insist upon this question. It has been held that evidence that the creditor is in the habit of collecting promptly all indebtedness due to him is admissible to support a claim of payment, together with a lapse of time.
Leiper vs. Erwin, 5 Yerger (Tenn.), 97; Huskey’s Admr. vs. Maples and Sapp, 2 Caldwell (Tenn.), 25.
(After further argument by the respective counsel and the citation of authorities in opposition to the question, the Court rendered the following decision) :
Pennewill, J.:—The Court think that while it may not be competent ordinarily to prove the habits of the creditor for promptly collecting his bills in order to show payment, yet we think that where there has been a long lapse of time, as in this case, and such lapse of time is relied upon to show payment, that such habits may be proven, not for the purpose of establishing insolvency but as tending to show payment, and it may be considered by the jury for that purpose for whatever in their judgment it is worth.
Leiper vs. Irwin, 5 Yerger (Tenn.,) 97; Huskey’s Admr. vs. Maples and Sapp, 2 Caldwell (Tenn.), 25.
A. As far as I know, he always has been,—there at the store in my dealings with him.
John F. Saulsbury, another witness called on behalf of the plaintiff, was asked by Mr. Magee the following question : Q. Do you know the reputation of Thomas O. Culbreth in this community for honesty and fair dealing ?
(Objected to by counsel for defendant as highly improper and inadmissible.)
Pennewill, J.:—We think that question is entirely inadmissible in this case.
(Both oral and documentary evidence were offered on the part of the defendant in rebuttal to the above evidence of the plaintiff, [513]*513tending to show that the defendant in the judgment, George A. Millington, was not in a prosperous financial condition during a part of the period between the time the bond was given by him and his death.)
Plaintiff’s Prayers.
First. That the lapse of time though less than twenty years may be considered as evidence of payment and may, together with other circumstantial evidence of payment, such as ability of the alleged debtor to pay and the stringent financial condition of the alleged creditor, be sufficient to warrant the finding of a verdict that the indebtedness has been paid.
Second. That the Court charge the jury that where the questian of payment relates to a remote period rendering it difficult to apply other than circumstantial evidence of such payment, the evidence of the possession of the debtor of means whereby he could have paid the debt or of his want of means rendering it impossible for him to do so is to be considered by the jury with other circumstances tending to show payment.
Third. That the Court charge the jury that where the creditor is in the habit of collecting promptly all indebtedness due to him it is a circumstance which goes to support a claim of payment ogether with a lapse of time.
Fourth. That if the jury believe that from the lapse of time though less than twenty years, together with the circumstantial evidence of payment such as the ability of the alleged debtor to pay and the stringent financial condition of the alleged creditor, together with other circumstances, the presumption of payment has arisen, then the burden of proof is upon the creditor to show that the debt has not been paid.
Fifth, That where a creditor holds an obligation a long space of time, though less than twenty years, and does not make demand [514]*514for payment until after the death of the debtor, that the jury should be cautious in finding a verdict for the creditor.
Defendant’s Prayer.
The defendant asked the Court to charge the jury that the burden of proof is upon the defendant in the judgment to show that the judgment has been paid.
Pennewill, J., charging the jury :
Gentlemen of the jury:—This is an action practically between Thomas O. Culbreth, the plaintiff in the judgment in question, and the estate of George A. Millington, the said Millington being the defendant in said judgment. The said plaintiff recovered a judgment against George A. Millington in the Superior Court of this county for the real debt of $500, with interest thereon from November 11, 1887. This judgment has, since its recovery, been marked by Culbreth to the use of different persons, the three-fifths part to the use of the Peoples Building and Loan Association of Dover; the one fifth part to the use of Mary Culbreth, and the remaining one fifth part to the use of John H. Rodney. Such transfers were all made at the risk and request of the said transferees, respectively.
There are no credits of either interest or principal admitted by the plaintiff on said judgment, and he therefore claims that the same is all due and payable including both principal and interest.
The defendant in this case, the estate of George A. Milling-ton, claims that the judgment which constitutes the cause of action in this case is fully paid, and that therefore nothing is due and payable thereon either of principal or interest.
Upon the petition and affidavit of Francis DeH. Janvier, executor of the last will and testament of George A. Millington, deceased, filed in this Court, and rule issued thereon against the parties in interest, the Court framed an issue to be tried by a jury [515]*515of this county at the bar of this Court, which is to inquire and determine “ whether any and what sum of money is due from the defendant to the plaintiff in the above stated judgment.”'
So, gentlemen, the single and only question that you are to decide in this case is whether anything is due from the defendant to the plaintiffs on said judgment, and if anything is due, how much is due.
We say to you that the judgment in question standing upon the records of the Court unsatisfied, and twenty years not having elapsed since it became due, is presumed to be a subsisting and valid judgment, and there is no presumption that it has been paid, in the absence of other facts and circumstances from which the jury might infer that it is paid. The burden, therefore, is upon the defendant, the estate of George A. Millington, to satisfy you that the said judgment is paid. Unless you are satisfied from the evidence which you have heard in this case that the debt has been paid your verdict should be in favor of the plaintiff, because in that event the judgment would stand.
Under the law a judgment is presumed to be paid after the lapse of twenty years from the time the debt became due, and in that case the burden is upon the plaintiff to show that it is not paid. But where twenty years have not elapsed such presumption does not arise from the lapse of time, and the burden is upon the defendant to show that it is paid. We say to you, however, that where a long period of time, for example seventeen or eighteen years, has passed since the judgment debt became due, you have a right to consider any and all relevant facts and circumstances shown by the evidence which tend to show that such judgment has been paid. You may take into consideration, therefore, in arriving at your verdict, evidence in respect to the financial condition of each or either of the parties to the judgment, both plaintiff and defendant; and also the habits of the plaintiff as to promptness in the collecting of indebtedness due to him. But we instruct you that such facts and circumstances are to be considered by you only so far as they may tend [516]*516to satisfy you that the judgment in question was paid, or from which such payment may be reasonably inferred.
If you are satisfied from the preponderance of the evidence in this case that the judgment in question is paid, your verdict should be that nothing is due from the defendant to the plaintiffs in the said judgment. But on the other hand if you are not satisfied by a preponderance of the evidence that said judgment is paid, your verdict should state what sum of money is due on said judgment.
Verdict: We find nothing due and owing from the defendant to the plaintiffs in the above stated judgment.