Knowles v. Waller

23 Del. 220

• Court: Superior Court of Delaware
• Decided: April 15, 1905
• Status: Published

Opinion

Spruance, J.:

We have no statute of limitations as to judgments; but there is a well settled rule of law as to presumption of payment arising after the', lapse of twenty years. That is not an irrebuttable presumption, but it stands until it is rebutted by lawful and proper evidence. The onus of rebutting it rests upon the plaintiff who claims that the judgment is still valid and should be collected.

The question is whether the plaintiff has rebutted the presumption of payment by the evidence which he has offered.

The plaintiff was the only witness examined on his behalf. He testified that the judgment had not been paid except as to the seventy-four dollars now allowed as a credit.

We have a statute which provides, “that in actions or proceedings by or against, executors, administrators or guardians in which judgment or decree may be rendered for or against them, neither party shall be allowed to testify against the other as to any transaction with or statement .by the testator, intestate or ward unless called to testify thereto by the opposite party.”

Vol 16 Laws of Del. Chap. 537.

There is nothing in this statute which prevents the plaintiff from testifying as to transactions between him and the defendant administrator. It was therefore competent for him to testify that the said administrator never paid to him this judgment, but the plaintiff was prohibited by this statute from testifying as to any transaction between him and the deceased Ebenezer Waller.

Payment or non-payment of said judgment by the said deceased is clearly a transaction within the meaning of the statute.

Our conclusion therefore is that the above mentioned testimony of the plaintiff, so far as it relates to the question of the payment or non-payment of said judgment by the said deceased must be rejected.

The plaintiff alleges the insolvency of the estate of the deceased as the reason for his long delay in taking proceedings to enforce the payment of this judgment.

He testified that after he entered the judgment he was told “that it was not worth while to have it entered—that Waller had nothing.” When he was told this, whether ten, twenty, thirty or thirty-three years ago, is not disclosed by the evidence.

The evidence is not sufficient to prove, or to warrant a jury in finding, that the estate of the deceased was insolvent during the long period which elapsed after the judgment was entered, or during the period of twenty years next before this action was brought.

On the other hand we have before us evidence that it appears by the returns to an execution against the estate of the said deceased that there was considerable personal and real property belonging to his estate, but how it was applied we do not know.

In our opinion the presumption of payment from lapse of time has not been rebutted, and we therefore direct that a non-suit be entered.