Hosmer, Ch. J.
This case presents the following questions. 1. Whether from the time which elapsed, unexplained ⅛8 it is, payment of the sum in demand ought to be presumed. 2. Whether the disability of the femes covert to bring suit, Repelled the presumption. 3. Whether the bond’s having ¡been on condition to convey real estate, makes any difference itt the result. 4. And whether the lapse of time was evidence éf a release, but not of satisfaction.
1. A forbearance for the period of twenty years, when un[392]*392explained, is a fact, from which payment of a sum demanded, ought to be presumed. Phill.Ev. 114. Bailey v. Jackson, 16 Johns. Rep. 210. To cite cases in support of a proposition so firmly established, is quite superfluous. A period of more than twenty years had elapsed, from the date of the bond in question, which was payable on demand, before the institution of the plaintiff’s suit, and, by legal consequence, the demand was extinguished, unless the presumption is repelled, by facts appearing in the case.
It has been said, that the omission to aver a specific demand, made by Mrs. Williams, for the conveyance of the land specified in the condition of the bond, shows, that no cause of action ever arose, and of consequence, that there has been no lapse of time, within the meaning of the law. Waiving answers to this remark, both obvious and conclusive, that this question was not agitated at the circuit; that if payment may be presumed from the lapse of time, a fortiori, a demand is presumable, which it was the interest of Mrs. Williams to make; and that, if there is no cause of action on the bond, the judgment for the defendantis obviously right; on this point, it is indisputable, that it was settled by the verdict of the jury. They were informed, that the presumption of payment arose, after the lapse of twenty years, “ from the accruing of the cause of actionand having found the bond to have been paid, they must have found, that there was a cause of action existing on it, before the commencement of the lapsed period, on which they rested their decision.
2. In discussing the enquiry, concerning the legal effect of the disability of the femes covert, I shall first suppose, what I take to be untrue, that they have a personal interest in the bond in question. The distinction between the bar, resulting from the statutes of limitation, on the subject of incapacity, and the presumption of payment from efflux of time, must constantly be retained in mind. The former is a positive impediment, while the latter is no bar, but is merely evidence of payment, inferred from the omission to make demand within a certain period. The principle of presumption alluded to, is rational, and may successfully be rebutted, by facts, which destroy the reason of the rule. Dunlop & Co. v. Ball, 2 Cranch, 184. Now, what is this reason ? It is, that a remedy existed for so long a period, which a person, not under any [393]*393disability, had an interest in enforcing, and which he omitted to enforce, as to convince the mind, that the demand, in some mode, has been satisfied. If the person was under an incapacity, and no remedy existed, for a given period, this period must be expunged. But if there were two joint obligees, and one of them was deprived of reason, or, through any other cause, had been disabled, this would constitute no ground to repel the presumption, if the other co-obligee had been under no disability. The remedy would have been unimpaired; and the mind would be equally convinced, from lapse of time, that the debt had been satisfied, as if both the co-obligees had been capable of suing. In the case before us, the married women could not sue, but their husbands could, and to do this, they had the highest personal interest. The money, when obtained, would be theirs ; and they would be shielded from the contingency of their wives death, which effectually would terminate their expectations. Had the femes covert been capable of suing, the presumption of payment would not have been encreased. Their interest to sue, could not be greater than that of their husbands, and their omission could be placed on no other foundation than theirs, nor lead tl-⅛ mind to any other result. Suppose there were no law of limitation, and a note had been given, payable on demand, to two partners, more than twenty years since. This efflux of time, unexplained, would be presumptive evidence of payment. Admit, however, that for ten years of this period, one of the partners had been a lunatic, but the other, who was the acting partner, had been free from any disability ; would the presumption of payment be repelled ? I think not; because there had always existed a plenary and unimpaired remedy. The same observation is equally applicable to the case under discussion.
From the execution of the bond, to the commencement of the plaintiff’s suit, a period of thirty years, there never existed a moment, save the short interval, which elapsed from the death of Mrs. Williams, to the taking out of administration on her estate, when there was nota person able to sue, and interested in bringing suit; and on this basis results the presumption of payment, or performance, as a necessary, and irrefutable legal consequence,
[394]*394I shall now place this point on what I take to he its true ground. The femes covert never had any interest in the bond, and were only the media, through which it was transmitted to their husbands. If this proposition is correct, the disability 0f the married women, is precisely as irrelevant, as if the bond had been executed to their husbands by name. In Griswold v. Penniman, 2 Conn. Rep. 564., it was adjudged, by this court, that choses in action, accruing to a wife during coverture, vest unconditionally in the husband. The case was this : Joshua Starr died intestate, leaving personal estate, and several children, one of whom was the defendant, Mary Penniman, then wife of John Penniman ; but no distribution was made to the heirs, until after the death of John Penniman. On his decease, the defendant, Mary Penniman, took administration on his estate, and gave the bond on which suit was brought, for the faithful performance of her trust. The breach relied on was, that she had not inventoried, as the estate of John Penni-man, that portion of the estate of Joshua Starr, consisting of personal property, which was distributed to her as one of his heirs. The plaintiff contended, that this property, on the death of Joshúú Starr, vested absolutely in the husband. The defendants insisted, that it vested in Mary Penniman, as a chose in action, not reduced to possession, and so remained during the coverture. The opinion of the court was in favour of the plaintiff. In assigning the reasons of the court, it was said by-Swift, Ch. J.—“ If the estate left by the father of Mrs. Penni-man, was chattels personal in possession, then they vested, at the time of his death, in her husband. If he left debts, which it was the duty of his administrator to collect, these would be choses inaction, which, by the common law, vested in the husband, on the death of her father.” The latter is precisely the case now before the court. From this determination it results, conclusively, that, on the death of Mrs. Williams, the bond became the property of the husbands ; and thus the argument, founded on the disability of their wives, is without any foundation.
3.
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Hosmer, Ch. J.
This case presents the following questions. 1. Whether from the time which elapsed, unexplained ⅛8 it is, payment of the sum in demand ought to be presumed. 2. Whether the disability of the femes covert to bring suit, Repelled the presumption. 3. Whether the bond’s having ¡been on condition to convey real estate, makes any difference itt the result. 4. And whether the lapse of time was evidence éf a release, but not of satisfaction.
1. A forbearance for the period of twenty years, when un[392]*392explained, is a fact, from which payment of a sum demanded, ought to be presumed. Phill.Ev. 114. Bailey v. Jackson, 16 Johns. Rep. 210. To cite cases in support of a proposition so firmly established, is quite superfluous. A period of more than twenty years had elapsed, from the date of the bond in question, which was payable on demand, before the institution of the plaintiff’s suit, and, by legal consequence, the demand was extinguished, unless the presumption is repelled, by facts appearing in the case.
It has been said, that the omission to aver a specific demand, made by Mrs. Williams, for the conveyance of the land specified in the condition of the bond, shows, that no cause of action ever arose, and of consequence, that there has been no lapse of time, within the meaning of the law. Waiving answers to this remark, both obvious and conclusive, that this question was not agitated at the circuit; that if payment may be presumed from the lapse of time, a fortiori, a demand is presumable, which it was the interest of Mrs. Williams to make; and that, if there is no cause of action on the bond, the judgment for the defendantis obviously right; on this point, it is indisputable, that it was settled by the verdict of the jury. They were informed, that the presumption of payment arose, after the lapse of twenty years, “ from the accruing of the cause of actionand having found the bond to have been paid, they must have found, that there was a cause of action existing on it, before the commencement of the lapsed period, on which they rested their decision.
2. In discussing the enquiry, concerning the legal effect of the disability of the femes covert, I shall first suppose, what I take to be untrue, that they have a personal interest in the bond in question. The distinction between the bar, resulting from the statutes of limitation, on the subject of incapacity, and the presumption of payment from efflux of time, must constantly be retained in mind. The former is a positive impediment, while the latter is no bar, but is merely evidence of payment, inferred from the omission to make demand within a certain period. The principle of presumption alluded to, is rational, and may successfully be rebutted, by facts, which destroy the reason of the rule. Dunlop & Co. v. Ball, 2 Cranch, 184. Now, what is this reason ? It is, that a remedy existed for so long a period, which a person, not under any [393]*393disability, had an interest in enforcing, and which he omitted to enforce, as to convince the mind, that the demand, in some mode, has been satisfied. If the person was under an incapacity, and no remedy existed, for a given period, this period must be expunged. But if there were two joint obligees, and one of them was deprived of reason, or, through any other cause, had been disabled, this would constitute no ground to repel the presumption, if the other co-obligee had been under no disability. The remedy would have been unimpaired; and the mind would be equally convinced, from lapse of time, that the debt had been satisfied, as if both the co-obligees had been capable of suing. In the case before us, the married women could not sue, but their husbands could, and to do this, they had the highest personal interest. The money, when obtained, would be theirs ; and they would be shielded from the contingency of their wives death, which effectually would terminate their expectations. Had the femes covert been capable of suing, the presumption of payment would not have been encreased. Their interest to sue, could not be greater than that of their husbands, and their omission could be placed on no other foundation than theirs, nor lead tl-⅛ mind to any other result. Suppose there were no law of limitation, and a note had been given, payable on demand, to two partners, more than twenty years since. This efflux of time, unexplained, would be presumptive evidence of payment. Admit, however, that for ten years of this period, one of the partners had been a lunatic, but the other, who was the acting partner, had been free from any disability ; would the presumption of payment be repelled ? I think not; because there had always existed a plenary and unimpaired remedy. The same observation is equally applicable to the case under discussion.
From the execution of the bond, to the commencement of the plaintiff’s suit, a period of thirty years, there never existed a moment, save the short interval, which elapsed from the death of Mrs. Williams, to the taking out of administration on her estate, when there was nota person able to sue, and interested in bringing suit; and on this basis results the presumption of payment, or performance, as a necessary, and irrefutable legal consequence,
[394]*394I shall now place this point on what I take to he its true ground. The femes covert never had any interest in the bond, and were only the media, through which it was transmitted to their husbands. If this proposition is correct, the disability 0f the married women, is precisely as irrelevant, as if the bond had been executed to their husbands by name. In Griswold v. Penniman, 2 Conn. Rep. 564., it was adjudged, by this court, that choses in action, accruing to a wife during coverture, vest unconditionally in the husband. The case was this : Joshua Starr died intestate, leaving personal estate, and several children, one of whom was the defendant, Mary Penniman, then wife of John Penniman ; but no distribution was made to the heirs, until after the death of John Penniman. On his decease, the defendant, Mary Penniman, took administration on his estate, and gave the bond on which suit was brought, for the faithful performance of her trust. The breach relied on was, that she had not inventoried, as the estate of John Penni-man, that portion of the estate of Joshua Starr, consisting of personal property, which was distributed to her as one of his heirs. The plaintiff contended, that this property, on the death of Joshúú Starr, vested absolutely in the husband. The defendants insisted, that it vested in Mary Penniman, as a chose in action, not reduced to possession, and so remained during the coverture. The opinion of the court was in favour of the plaintiff. In assigning the reasons of the court, it was said by-Swift, Ch. J.—“ If the estate left by the father of Mrs. Penni-man, was chattels personal in possession, then they vested, at the time of his death, in her husband. If he left debts, which it was the duty of his administrator to collect, these would be choses inaction, which, by the common law, vested in the husband, on the death of her father.” The latter is precisely the case now before the court. From this determination it results, conclusively, that, on the death of Mrs. Williams, the bond became the property of the husbands ; and thus the argument, founded on the disability of their wives, is without any foundation.
3. The condition of the bond in question, being for the conveyance of real estate, causes no difference in the result of this case. It has been contended, that the contract, being essentially for the conveyance of land, did not vest in the hus[395]*395bands of the femes covert; but, in my judgment, this is a gratuitous assertion. The bond is a chose in action ; and so far as the remedy at law is concerned, which is the only enquiry before the court, the legal right vested in them absolutely. By the non-performance of the condition, the bond became single, and is not distinguishable from a similar contract without condition. The same remark would be equally true and applicable, to a covenant for the conveyance of land, made to Mrs. Williams, and broken before her death. On breach of the covenant, the right to damages would accrue to the husbands. What a court of chancery would do, on an application for a specific performance, it is unnecessary to determine; as in a court of law, legal considerations are alone available. “ We have nothing to do, in this place, with any other than legal rights.” Wake v. Tinkler, 16 East, 36. The plaintiff’s claim is founded on the neglect of the administrator, to collect and pay a sum of money; nor will it be pretended, that there ever rested any duty on him, to apply for a specific execution of the contract, in favour of the married women. I will, however, barely observe, that all the impediments, which press against the plaintilf’s demand in a court of law, would, in plenary force, exist in chancery, with others, peculiar to the administration of justice in the latter court. Clifton v. Taylor, 1 Madd. Chan. 329. Smith v. Clay, Amb. Rep. 645. 1 Madd. Chan. 79. 329.
4. As the defendant has pleaded, that the bond in question was paid and satisfied, and not that it was released, it remains to be considered, whether the lapse of time is evidence of a release only, and not of satisfaction. I confess myself incapable of perceiving the ground of this distinction. I entertain no doubt, that a release ought to have been presumed, had the defence been placed on that ground. But the legal presumption, resulting from time elapsed, does not operate in any specific direction. The principle was adopted for the furtherance of justice, and the sake of peace, and will support any set of facts, which extinguish the ancient demand; and more especially, is it available to show, that the condition of the bond has been performed, the most probable of all possible facts. A release might not have been given ; but the long continued and unexplained omission to make demand, is best accounted for, by the probable supposition, that the condition [396]*396of the bond was actually performed, in the life-time of Mrs. Williams, or the hundred pounds received, and the specific execution of the contract relinquished.
I have been not a little diverted, by the exhibition of considerable zeal in behalf of the femes covert personally, lest they should be deprived of the fruits of the bond, and all this to sustain a suit at law, virtually in favour of their husbands, on the success of which, the women will forever lose all hope of personal benefit. Of doing injustice to those who have had vigilant guardians, eagle-eyed to appropriate to themselves the penalty of the bond, I am not afraid ; but I am very apprehensive, that, by a judgment on the bond against the defendant, he will be subjected to make a double satisfaction.
Brainard, J. was of the same opinion.
Chapman, J.
Though the action, in this case, is on the probate bond, yet in substance, it is an action on the original bond, and must be governed by the same rules.
The question, then, is, whether twenty years can be given in evidence, to create a legal presumption of there having been a performance of the condition of the last-mentioned bond, under the circumstances of this case. It is material to observe, that the defendant relies on having conveyed the land, according to the condition of the bond, and not on having paid the penalty. The objection is, that the real plaintiffs have been, during the time, or most of it, under coverture, and that, therefore, as against them, lapse of time creates no presumption of performance. It is not denied, that lapse of time may be given in evidence, to prove payment or performance of a condition ; but as the law is now understood, it requires twenty years, atthe least; and during the whole of that time, as I conceive, the plaintiff must have had the power of prosecuting his claim. If he has been beyond sea, insane, &c. the presumption ceases to exist, though any number of years have elapsed. This presumption is not grounded on any supposed punctuality of the defendant, in paying his debts, or performing his contracts ; but it is founded entirely on the fact, that the plaintiff has the power of compelling a performance, and after a lapse of twenty years, the law will presume he has done it, unless he repels this presumptions by proof of disability, on [397]*397his part, or by some other proper evidence, though that which is very slight, will be sufficient.
It is admitted, that the claimants, in this case, were under a disability ; but it is said, their husbands were not.—True ; but they did not own the land. In equity, their wives owned it; and had they been under no disability, might, at any time, have compelled the defendant to convey it. Their husbands had an interest to recover the penalty, paramount to that of having the condition performed ; for, in the first case, they would have been entitled to the whole money, but in the last, they could, at most, have been tenants for life. The presumption, therefore, that a conveyance was ever made, is, if any thing, extremely slight.—Besides, these presumptions are made to operate against those persons only, who are guilty of laches. Here, those who have the principal interest, are to be affected by the laches of those, who have a minor one, and over whom they have no controul.
In statutes of limitation, a proviso is almost always introduced, excepting femes covert from their operation. This is not, indeed, decisive; but, in my mind, it is a strong argument against permitting lapse of time to deprive persons of their rights, when they are incapable of asserting them.
In analogous cases, this doctrine, I think, would not be contended for. Suppose the land of a feme covert should be overflowed, by the erection of a mill-dam below, and should continue so for more than fifteen years ; would she lose her right to it ? Upon the principle contended for by the defendant, she would ; and yet should she be disseised of her land, and continue so, for more than fifteen years, her rights would be saved, by the proviso in the statute. All the arguments in favour of the presumption, in this case, will apply, with their full force, to the acquisition of all incorporeal hereditaments, by user, against femes covert; for in every supposable case, their husbands may prosecute. It is no answer to say, that another can vindicate my rights, unless I have a controul over him. The question always is, has the person claiming, been guilty of laches ?
I think, therefore, that the principle adopted in the charge, is equally novel and incorrect.
Peters and Brirtol. Js. were of the same opinion.
New trial to be granted.