
    Andrew Wherry, Administrator of John Scott, vs. Martha McCammon and others.
    
      Presumption — Payment—Judgment.
    Where less than twenty years have elapsed since a judgment was rendered, payment will not be presumed, unless other circumstances are shown, which, associated with the lapse of time, create a presumption, amounting to actual belief, that the debt has been paid.
    A lapse of nearly nineteen years, with the other circumstances proved, held insufficient to raise the presumption of payment.
    BEFORE CARROLL, OH., AT YORK, JUNE, 1861.
    This ease will be sufficiently understood from tbe decree of his Honor, the Circuit Chancellor, which is as follows:
    Carroll, Ch. In December, 1849, Matthew McCammon bargained with the plaintiff Andrew Wherry, for a small parcel of land, at a stipulated price. William E. Kelsey became McOammon’s surety for the payment'of the purchase-money, and, by agreement between the parties, received a conveyance of the legal title to himself as counter security against his liabilities as such surety. The bulk of the purchase-money was paid by McCammon in his lifetime, and the residue by the rents of the land after his death. The claim of his heirs (his widow and children) to the benefit of his contract of purchase being contested, they exhibited their bill in this Court against Kelsey and others; and under a decree in that cause have obtained a conveyance to them of the land in fee. The personal assets of Matthew McCammon were wholly inadequate to pay his debts, and indeed are said to have been insufficient to discharge the ordinary expenses of administration. This suit is instituted against the administrator and heirs of McCammon, by the administrator of one of his judgment creditors, in behalf of himself and the other creditors of like grade, to have the land referred to subjected to the payment of their debts.
    The single question discussed at the hearing was, whether the judgment debt of the plaintiff’s intestate, John Scott, against Matthew MeCammon, had been paid or not. There was an interval of nearly nineteen years between the rendition of the judgment and the filing of the bill. This period of time is insufficient of itself to bar the plaintiff’s demand. After the full expiration of twenty years, everything necessary to quiet title or possession will be presumed. Such presumptions do not rest upon actual belief, or upon the conviction that any particular fact had occurred, or any specific act been performed. Riddlehoover vs. Kinard, 1 Hill, Ch. 380.
    It is otherwise where less than twenty years have elapsed. Associated with other circumstances, such lapse of time may undoubtedly create a bar by presumption. But such presumptions have no artificial vigor, and “ depend upon their own natural force and efficacy as derived from those convictions which are pointed out by experience.” 2 Stark. Ev. 684. Presumptions of this class must produce actual belief. They must impress upon the mind the conviction that some act has been performed, or some specific transaction between the parties has really occurred, by means of which the claim or demand has been satisfied or extinguished. If they fall short of this requisition they are unavailing.
    The defendants do not suggest that the judgment debt had been discharged by release or by accord and satisfaction, or otherwise than by payment. We have but to inquire therefore whether the proof establishes the fact of actual payment. It is not pretended that any payment upon the debt has been made since the death of Matthew MeCammon. If the debt was ever paid, its payment must have occurred in his lifetime. The judgment was signed October 28, 1841, and Matthew MeCammon died June, 1858. The interval was less than seventeen years. To support the presumption of payment from this lapse of time, but a single circumstance appears in the evidence, and that is, that John Scott, the j udgment creditor, had removed to Arkansas some short time before his own death, and it is not shown that, though contemplating such removal, he had then made any effort to collect this debt, or otherwise turn it to account. His supposed indifference (which appears only by inference from the absence of evidence to the contrary) may have resulted from the consciousness that the debt was paid, or from despair of ever receiving. The latter explanation is certainly quite as probable as the former. In leaving the State with his judgment unpaid, he appears to have abandoned, not his claim to the debt, but the hope of ever collecting it. The circumstance adduced to aid the presumption of payment from lapse of time is in itself equivocal and ambiguous, and its effect is neutralized by other and opposing proof.
    It appears with reasonable certainty that Matthew McCammon, after the judgment had been recovered, owned no property, or if any, property of very inconsiderable value, liable to levy ,trader execution from a Court of law.
    The execution of fieri facias founded upon that judgment is indorsed with an informal return of “ nulla bona” to the spring term in 1842 of the law Court, and with a like return to the fall term of that Court in 1845 ; and no further proceedings under it seem to have been had.
    It appears that Matthew McCammon’s family consisted of a wife and three children, two of whom are still in their minority. He was a carpenter, and, though represented to be industrious by one of the witnesses, was thriftless and of intemperate habits. He resided with his family upon the parcel of land, for which he had bargained with the plaintiff. J. N. McElwee, who kept a store in the neighborhood of McOammon’s residence, testified that the latter had contracted debts with him amounting to more than $200, and tliat McCammon’s excuse for not paying that indebtedness was, that he was anxious to pay Kelsey what he owed for the land. It may reasonably be inferred that McCammon would be desirous to keep up his credit with the merchant from whom his supplies of necessaries for his family were probably procured, by making payments to him whenever in his power. His failure to pay in that quarter was in all probability because he was without the means of doing so. Nor was his excuse that he was making payments to Kelsey for the purchase-money of his land a mere pretence. The fact appears, that at the time of his death he had paid the whole amount of the purchase-money, except a small balance of some twenty dollars.
    The circumstances seem to warrant the opinion exjnessed by the witness, that all McCammon made over and above a support for his family went to pay Kelsey what he owed for the land. The fair conclusion appears to be that, after making the expenditures he is shown to have made, McCammon had not the means of paying his judgment debt to John Scott.
    The nature of McOammon’s interest in the land may have contributed to John Scott’s forbearing any active efforts to compel payment of his judgment. Upon paying the purchase-money McCammon would become entitled to .a. conveyance of the legal title, and, as Scott might very well suppose, would then receive such conveyance, in which event the lien of his judgment attaching to the land would effectually secure the debt. The value of the land appears to have been entirely sufficient to pay the judgment, and it may well have been that John Scott was only awaiting the maturing of the legal title.
    The burden of proof rests upon the defendants. Upon consideration of the whole evidence, it appears to the Court that the judgment referred to must be regarded as still of force and unpaid, and it is so adjudged and decreed.
    
      No question has been made as to the disposition of the moneys to arise from the sale of the land, but delay and embarrassment in the future may perhaps be avoided by calling in the creditors generally, and thereby admitting those whose debts are of lower rank than judgments, to assert their right -to participate in the fund, if they shall be so advised.
    It is ordered and decreed, that all and singular the creditors of Matthew McCammon be required to come in and prove their debts respectively before the Commissioner, by a peremptory day to be fixed by him for that purpose, of which due notice is to be given by public advertisement for one month in some suitable newspaper that he may select; and that the Commissioner report the amount and grade of the respective debts subsisting against Matthew McCammon at the time of his death.
    And it is further ordered, that upon the coming in of the report, the plaintiff have leave to move for such further orders as may be fit and proper.
    The defendants appealed, and now moved this Court to reverse the decree, on the grounds:
    1. That the judgment should be presumed satisfied, from the lapse of time and other circumstances proved; that the demand is stale and ought not to be enforced.
    2. Because the plaintiff is a mere volunteer, having sought the administration for the avowed purpose of defeating his own title; that he is estopped by the decree under which he made the conveyance to the defendants.
    
      Smith, for appellants.
   Curia, per

Dunkin, C. J.

This appeal was submitted without any argument in behalf of the appellants.

The judgment of the Chancellor is well vindicated by the authorities cited in the decree, and the appeal is dismissed.

Wardlaw and Inglis, J. J., concurred.

Appeal dismissed.  