Morey v. Farmers' Loan & Trust Co.

The last payment, covenanted to be made in the articles of agreement for the sale and purchase of the land, became due June 16,1821, and the action to recover the possession of the premises was commenced in October, 1850, by the present defendant against the present plaintiff. The plaintiff in this action alleged, in his complaint, generally, payment of the whole consideration, and upon that ground claims a conveyance from the defendants of the legal title of the premises pursuant to the covenant contained in the contract for the sale of the premises. For the evidence of payment he relies solely upon the presumption arising from the lapse of time, and insists that no evidence could be given to repel this presumption, except payment of some part of the consideration, or a written acknowledgment of a right of action, within twenty years next before the action was commenced; and to support this po*404sition he relies upon the 48th section of 2 R. S. 301. The de^ fendant insists that this statute has no application to the casej that the statute relates to “ sealed instruments, for the payment of money,” and does not apply to mutual covenants providing for the doing of other things besides the payment of money.' The defendant also insists that the evidence to rebut the presumption of payment was properly received, and that as it tended to show that the plaintiff had no title, and as no claim of payment was established, the court was justifiable in finding that the consideration had not been paid. This I regard as the important question in the case. If the evidence to repel the presumption óf payment was properly admitted, it seems to me that the finding of the court upon the issue of payment cannot be disturbed.

Prior to the revised statutes, the presumption of payment after1 the lapse of twenty years, and in some cases a shorter time, was allowed to prevail, and to defeat actions upori bonds, mortgages and other contracts for the payment of money. This presumption, however, was liable to be rebutted by any evidence that tended to show that in fact payment had not been made; and evidence explaining the delay, in bringing the action, was often admitted, and, if satisfactory, overthrew the presumption. (See 1 Greenl. Ev. § 39 ; 2 Id. § 528 ; Mathews’ Pres. Ev. 358 et seq.; 6 Cowen, 403 ; 16 John R. 210 ; 3 John. Ch. R. 129 ; 1 Paige, 477 ; 7 Id. 465.) The statute referred to provides, that “ after the expiration of twenty years from the time a right of action shall accrue upon any sealed instrument, for the payment of money, such right shall be presumed to have been extinguished by payment; but such presumption may be repelled by proof of payment of some part, or by proof of a written acknowledgment of such right' of action within that period.” (2 R. S. 301, § 48.)

The section is new. Most of it, however, is in affirmance of the common law. The decisions <*s to the precise time that should elapse, before the presumption should attach, was not uniform or rather, they did not agree upon any uniform precise time. The statute fixes the time at' twenty years. By the common law, as already stated, the presumption might be rebutted by any evidence tending to show that payment had not been made: *405By the statute the presumption may he repelled by proof of payment of some part, or by proof of a written acknowledgment, &c. It is clear that the presumption may be repelled in either of these ways; but is it clear that other modes, to which resort could be had at common law, are excluded by the statute 7 It is insisted, by the counsel for the plaintiff, that the maxim “ Expressio unius exelusio est alterius” applies. This maxim generally finds its application in the construction of contracts ; it is, however, applicable to the construction of statutes. As a general rule, a statute in affirmance of the common law does not abrogate the common law. When the words of a statute are general, and only declaratory of the common law, it may extend to others besides the persons or things named ; sometimes the expressions used are restrictive, and intended to exclude all things not enumerated. (Broom’s Legal Max. 285.)

On consulting the revisers’ notes, I find that that part of the section we are considering, as reported, read thus—“ but such presumption may be repelled by competent proof of an acknowledgment of such right of action, within that period.” This would have left undisturbed the rules of evidence by which the presumption of payment might be rebutted. Any competent proof could have been resorted to. The legislature, however, substituted the present language. Did they thereby intend to limit the rebutting evidence to a payment of part, or a written acknowledgment 7 I am of the opinion that such was the intention of the legislature, and that the statute should be so construed. I have come to this conclusion with some hesitation. The language used by the revisers was well adapted to preserve the law, as to the mode of rebutting the presumption, as it was ; and we must, I think, hold that the legislature intended to restrict and limit the proof. In the preceding section, touching judgments, the language is, “ may be repelled by proof of payment or of written acknowledgment of indebtedness,” &c. It is added, however, that in all other cases it [presumption] shall be conclusive. The language as' inserted by the legislature in § 48 is like the language in § 47, and although it is not added that the presumption shall be conclusive, I think the legislature in*406tended to put judgments and sealed instruments for the payment of money upon the same footing.

Henderson v. Henderson, (3 Denio, 314,) was cited upon the argument by the plaintiff’s counsel. It was there held, that when twenty years have elapsed from the time judgment was signed and filed, the defense must be interposed by a plea of payment. Justice Bronson remarks, that the presumption may be repelled by proof of payment of some part of the debt, or a written acknowledgment, &c. This is substantially the language of the statute. The question we are now considering was not up in that case, and the learned judge did not discuss it. I do not rely upon the case as an authority in point, and no case in point was cited on the argument; and I have found none. If I am right in this construction of the statute, it disposes of the case. The evidence of the conversation, between the plaintiff and the agent of the defendant, was improperly admitted to repel the presumption of payment. It is not claimed that it tended to prove payment of any part of the consideration. There was no evidence, on the trial, of any written acknowledg: ment of a right of action.

In my opinion the statute includes this case. The article of agreement for the sale and purchase of the land was a “ sealed instrument, for the payment of money.”

It was objected by the plaintiff’s counsel that the statute is in effect a statute of limitations, and the presumption of payment is only available as a defensive weapon, and not as an instrument for affirmative relief. And he insisted that the complaint ought to be dismissed. We are to assume that the consideration agreed to be paid was paid at the time it was, by the contract, payable. This was so held in The Farmers’ Loan and Trust Co. v. Farrington, decided in this district; opinion by Justice Hoyt. Where the vendee pays all the consideration money according to the terms of the agreement, he is entitled to a conveyance according to the terms of the agreement. In my opinion, the plaintiff is entitled to a conveyance.

The whole case, I think, turns upon the construction to be given to the latter clause of the § 48 of the statute. If my *407construction is right, there should be a new trial; otherwise I think there should not be. The plaintiff offered to prove the claims and declarations of those from or through whom he derived his interest, while they were in possession. I think the court properly excluded this evidence. The question of adverse possession was not involved. Those declarations were not competent upon the question of payment. There should be a new trial; costs to abide the event.

Marvin, Bowen and Green, Justices.]