
    William Eustace v. Gaskins Executor of Eustace.
    April Term, 1793.
    Right Unasserted — Presumption—How Rebutted. — A right, for a length of time unasserted, is open to a presumption of its having been satisfied, sufficiently strong to defeat it. But this presumption may be opposed by circumstances accounting for the forbearance.
    Profits of Land — By Whom Ascertained. — The value and profits of land being in the nature of damages, ought to be ascertained by a .Jury, and not by Commissioners.
    Shit against Executor — Qualification of Another after Bill Filed — Parties.—After bill filed against one‘executor, if the other executor qualify, he ought to be made a party to the suit as soon as it is known that he has so qualified.
    This was a suit in equity, instituted by the appellant in the County Court of Lancaster. The object of the bill is, to recover a compensation, for certain lands devised to the plaintiff, by his father; William Eustace, and afterwards recovered from him at law, by: some person having a better title.
    This claim, is founded upon a clause in the will of the said William Eustace the father, by which he desires, that in case the land given to his son William, should be recovered from him, his son John (the testator of the defendants, to whom he devised the principal part of his estate,) •should purchase it for his said son William. Ia 1742, the recovery was obtained, and the testator of the defendants, died in 1785.
    This suit was instituted in 1788, and the bill, accounts for the delay in bringing1 the suit, by charging-, that the testator of the defendant amused the plaintiff, until his death, with promises of providing for him bjr his will. Some proof of such a promise, as well as an acknowledgment by John Eustace, of the plaintiff’s forbearance, appears in the record. The defendant, in his answer, principally relies upon the length of time. Exceptions were taken, and tiled by the defendant, on account of the court’s refusing to receive the answer of Mrs. Eustace, who is stated in the exceptions to have qualified as executrix of John Eustace since the institution of this suit.
    *’fhe County Court, directed the value of the land in 1742, and the back rents, to be ascertained by commissioners, and decreed the amount thereof, to the plaintiff, the present appellant.
    This decree, was reversed in the High Court of Chancery, and an appeal was taken from thence, to this court.
    Washington for the appellee.
    The first objection which occurs to the decree of the County Court is, that there is not such testimony in the cause, as could warrant a •recovery upon any principal. The will of William Eustace the elder, is not made an exhibit, nor admitted by the defendants in their answer; neither is there any other evidence of the recovery stated in the bill, but a judgment in ejectment against John Eustace, an infant, of some land; but whether of that, advised by the will of William the father, does not appear.
    But I rely principally upon the length of time, which has elapsed, since the recovery slated in the bill. Substantial justice and wise policy demand, that in all cases, whether legal, or equitable, there should be a period, beyond which no claims should be litigated: such a length of time, as creates a presumption of payment, or of satisfaction made, is considered as much an equitable bar in this court, as if it came within any positive act of limitation. In the case of Standish v. Radley, 2 Atk. 177, where portions, which became due in 1673, were sued for in 1717, lord Hardwicka determined, that such a lapse of time, creates a strong presumption, that they had been paid, and amounts almost to the proving of a negative to induce the' court to believe them still unpaid.
    So, in the case of Smallman v. Hamilton 2 Atk. 71, an annuity devised by will, was considered, as being barred by length of time, on the presumption, tho’ forborne to be sued for 10 years only — see also 3 Atk. 105 — 226, 1 Har. Cha. Prac. 375.
    Marshall for the appellant.
    I admit that length of time, which induces a presumption, that the claim has been satisfied, will create an equitable bar. But this presumption, maybe repelled by testimony accounting for the delay, and in this case, there is a sufficient reason assigned, and proved, for the appellant’s not asserting his right, at an earlier day. it appears, that the testator of the appellee had been long married, without having children — that he acknowledged his brother’s lenity, in not coercing satisfaction of his claim, and promised, to make him an ample provision at his death.
    There is no room then, to let in a presumption of payment, upon which alone, this equitable bar can be set up.
    
      
      Payment — Presumption—Lapse of Time. — The presumption of payment is not a legal presnmption absolutely conclusive, but it is a presumption of fact; which, though not conclusive, is yet prima facie proof of payment. If less than twenty years, though nearly that time, have elapsed, all the circumstances are considered, including lapse of time, and their natural weight as evidence is to be given to each circumstance, including lapse of time, but if twenty years has elapsed a legal presumption arises, which must be accepted as proof, unless the contrary appears by evidence. But this presumption may be rebutted by proof which is satisfactory that the debt has not been paid, such as the proof of payment of interest within the twenty years, the continued abseñce from the country of the obligee, the continued insolvency of the defendant or obligor, or other strong circumstances showing nonpayment, or showing good causes for longer forbearance. Hale v. Pack, 10 W. Va. 151, citing Eustace vm Gaskins, 1 Wash. 188. See also, citing the principal case, Oriss v. Oriss, 28 W. Va. 404; foot-note to Mulli-day v. Machir, 4 Gratt. 1.
    
    
      
      Profits of Land — By Whom Ascertained, — In Cooke v.Wise, 3Hen. & M. 463, the principal case is quoted from as holding that, the value and profits of land being in the nature of damages ought tobe ascertained by the jury and not by commissioners.
      On this question, the principal case is cited in Roberts v. Stanton, 2 Munf. 138,139, and overruled, which case holds that, it is not error in a court of equity to direct commissioners instead of a jury, to state and report an account of the profits of land. The principal case is cited in foot-note to Kennedy v. Baylor, 1 Wash. 162.
    
    
      
      Executors and Administrators. — See monographic note on “Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.
    
   *Tne PRESIDENT

delivered the opinion of the court.

The judge, who pronounced the decree of reversal in this case, seems to have considered no other question, but the presumption against the demand, on account of its antiquity. It is undoubtedly true in general, that a right, for a length of time un-asserted, is subject to a presumption of its having been satisfied, sufficiently strong, to defeat it. But it is equally true, that this presumption may be opposed by circumstances, accounting for the forbearance. In this case, we think a sufficient reason for the delay is assigned, and satisfactorily proved. The decree of the Chancellor is therefore erroneous, and must be reversed. As to that of the County Court, we have felt some difficulty in deciding, what ought to be done with it; it cannot be sustained upon any principle. The will not having been made an exhibit in the cause, and the only evidence of a recovery, of the land in question, being a judgment of the General Court, against John Eustace, for some land, (but what land does not appear,) the decree was certainly made, without sufficient testimony to warrant it. In the next place, Mrs. Eustace ought to have been made a party, so soon as it was known, that she had qualified as executrix to her husband John Eustace. Her answer might have disclosed something important, of her own knowledge. The court ought to have directed an issue, to try, whether any, and what part of the plaintiff’s land, had been recovered, as well as the value and profits thereof, which being in the nature of damages, ought to be ascertained by a jury, and not by commissioners.

The decree of that court therefore, must also be reversed, as well as the proceedings subsequent to the answer. The plaintiff to have leave to amend his bill, so as to make Mrs. Eustace a party defendant, and the cause to be sent back to the County Court, to be there proceeded in.  