Booker v. Booker.

be brought within twenty years thereafter. The learned judge seems to have thought that as the statute was passed before a presuaption of payment had attached to the bond in controversy, and as the action was brought in 1869, within the time limited by the statute, the defendant could not rely upon the bar of the statute, neither could he rely upon the legal presumption of payment. The instruction is not so clearly drawn as to show with absolute certainty what was meant by the court, but this is the fair inference from the language used. We are of opinion that the statute in question was not designed to change the rule of the common law. The object was simply to apply to actions on scaled instruments a statutory limitation in like manner as to actions on parol contracts, the only difference being that a greater time is allowed in the former case than in the latter.

Where the bond has been executed since the 1st of July, 1859, and has been due twenty years or more, the defendant may rely upon the statutory limitation, or he may waive that and take his chances before the jury upon the mere presumption of payment from lapse of time.

There is no decision in our reports upon this precise point, but the courts have held substantially this doctrine in analogous cases. For example, although there is an express statutory limitation with respect to parol contracts in an action upon a promissory note, the defendant, without pleading the limitation, may rely upon the presumption of payment after the lapse of twenty years. In Duffield v. Creed, 5 Esp. 52, which was an action of assumpsit upon a promissory note, with a plea of payment, Lord ELLENBOROUGH said: "If this had been a bond, twenty years would have raised a presumption of payment, in which case he would have left the presumption to the jury, and he thought as this note was unaccounted for, the same presumption of payment ought to apply." There is no doubt that this is the settled doctrine in the English See 1 Phillips on Evidence, page 576; 1 Rob. Prac. (N. E.), page 461, where the authorities are cited. That it is also the rule in this State is manifest from the cases of Tomlin's Adm'r v. How's Adm'r, Gilm. 1; Ross v. Darby, 4 Munf. 428; Wells v. Washington's Adm'r, 6 Munf. 532.

If in an action upon an unsealed instrument the defendant may waive the statutory bar and rely upon the presumption of payment arising from lapse of time, there is no good reason why he may

Booker v. Booker.

not do the same thing in an action upon an instrument which is sealed.

With respect to bonds executed before the 1st day of July, 1850, the limitation under the statute is the same as upon a bond executed and payable the day after the statute took effect, that is to say, the 2d day of July, 1850. This was in pursuance to the uniform policy of the legislature to give the statute of limitations a prospective operation, and therefore it is, that in applying the limitation, the lapse of time which accrued before the adoption of the statute is always excluded. Under the provisions of the statute, therefore, an action may be maintained on a bond, although executed more than twenty years before the statute was passed. In such case the obligee cannot be defeated by a plea of the statute, although he might be by the presumption of payment. In thus preserving all the rights of the obligee, it was not intended to impair those of the obligor, nor to deprive him of any defense he might have made if the statute had not been passed.

The common-law rule already adverted to does not, as the statute, create an absolute bar to the action. It simply raises a presumption of payment after the lapse of twenty years, which the plaintiff may rebut by evidence. It is a rule of evidence and not of pleading. It is founded upon the idea that in the ordinary course of human affairs it is not usual for men to alllow real and well-founded claims to lie dormant a great length of time. Starkie on Evidence, 72. The statute is but an affirmation of this principle. In the present case the bond was executed in 1837, thirteen years before the 1st of July, 1850; the action was brought in 1869, nineteen years afterward; so that thirty-two years had elapsed between the date of the bond and the institution of the suit. It can scarcely be supposed it was the intention of the legislature, while adopting a statute for the security of the obligor, to deprive him of the benefit of the common-law presumption arising from the lapse of time. The most that the obligee can require is that his right of action shall not be affected by the statute, leaving to the obligor every defense he might have made if the statute had not been passed.

It is said, however, that the defendant was not injured by the instruction, because the evidence clearly rebutted the presumption of payment. This view is fully met by the case of Wells v. Washington's Adm'r, 6 Mun. 532. At the trial of that case, on the plea

Herring v. Wickham.

of payment, the defendant moved the court to instruct the jury that twenty years having elapsed between the time when the note became due and the institution of the suit, they ought to presume it paid unless evidence be offered of some acknowledgment of the debt within twenty years, or unless interest or a part payment was proved within twenty years. This instruction was refused, and this court held that refusal to be error, and that the court below could not be justified in refusing to give such instruction on the ground that the defendant in his application has not stated the evidence given in the cause, or because, in the court's opinion, the principle of law did not apply to the case under the circumstances appearing in proof; for this would be undertaking to judge of the weight of evidence of which the jury are the proper judges. And so in the present case, the court ought to have told the jury that more than twenty years having elapsed between the date of the bond and the institution of the suit, they ought to presume it paid unless the defendant rebutted the presumption by satisfactory evidence. Whether the evidence was sufficient for that purpose was a question exclusively for the jury and not the court.

A husband, before marriage and in consideration thereof, conveyed all his property to his intended wife; he was largely insolvent at the time; the parties had been living together in illicit intercourse and had had several children born to them before marriage; in a suit by creditors to set aside such conveyance as fraudulent, held, that the settlement was valid, the wife having had no knowledge of the intended fraud.

by creditors to set aside a deed as fraudulent. The defendant Wickham, being hopelessly insolvent, conveyed all his property in trust for the benefit of Maria F. Kersey, and her children. The consideration of the conveyance was a contemplated marriage, which was afterward consummated. The parties had been for many years living in illicit intercourse together, and had

Herring v. Wickham.

had several children born to them. No participation in the fraud was proved against the wife. The bill was dismissed and the

plaintiffs appealed.

C. G. Griswold, W. W. Crump and John Dunlop, for appellants.

John A. Meredith, J. B. Young, H. T. Wickham and Thomas N. Page, for appellees.

STAPLES, J. The subject of controversy in this case is an antenuptial settlement made by John H. Wickham upon Maria F. Kersey and her children on the 23d of February, 1868. At that time Mr. Wickham was indebted to a very large amount, far beyond his means of payment, and his object in making the settlement, it is claimed, was to defraud his creditors. If Mr. Wickham was alone concerned, there would be little difficulty in declaring the settlement void as to his creditors; but he is not the only one; the parties chiefly interested are the wife and children, for whose benefit the settlement was professedly made. The first section of chapter 114, Code of 1873, which is but a continuation of an old statute, after declaring that. conveyances made with intent to hinder, delay or defraud creditors, shall be void, further declares that this section shall not affect the title of purchaser for valuable consideration, unless it appears that he has notice of the fraudulent intent of his immediate grantor, or of the fraud rendering void the title of such grantor." Conveyances for a valuable consideration without notice of the fraud by the person receiving the conveyance are valid at common law, and as is here seen, are expressly excepted out of the operation of the statute. So that if the grantee be a bona fide purchaser for a valuable consideration, his or her title is unassailable, whatever may have been the motives or intentions of the grantor in executing the deed. It is absolutely essential that both parties shall concur in the fraud.

If it be conceded, therefore, that Mr. Wickham's intention in making the settlement was to avoid payment of his debts, the question still arises, did Maria F. Kersey (now Mrs. Wickham) have notice of that intention? Upon a very careful examination of this record, I think that question must be answered in the negative, or perhaps, to speak more accurately, the evidence is insuffi

Herring v. Wickham.

cient to establish the notice. It must be remembered that in cases like the present, the courts cannot act upon mere suspicion or presumption. Fraud must be proved-proved by clear and satisfactory testimony. This is the well-established rule, universally recognized by the courts, and scarcely needs a citation of authority to support it.

There is no evidence, literally none, to show that Mrs. Wickham, at the time of the settlement, was apprised that Mr. Wickham was in embarrassed circumstances, or even that he was indebted to any one. A witness was introduced who stated that he advised Mr. Wickham to go into bankruptcy, and the latter replied he could come through without it. It is not proved that Mrs. Wickham heard this conversation, or if she did, that she understood its purport. And this is the only evidence to establish the notice, unless we are to presume from the intimacy of the parties that Mr. Wickham informed her of his indebtedness, or that his purpose in making the settlement and in entering into the marriage was to secure his property from the claims of creditors. There is, perhaps, no subject upon which men are more reticent even with their families and intimate friends, than that which relates to their business transactions, and especially their pecuniary liabilities. Under all these circumstances it is hardly to be presumed that Mr. Wickham was more communicative in the present case. At all events there is no proof of the fact.

Mr. Wickham's closest neighbors considered him a wealthy man, the wealthiest in the community. Some of them thought him a money-lender. He was the owner of two valuable farms in Hanover, one containing 700 or 800 acres, and the other 1,300 acres, upon which he resided. It is very true they were subject to incumbrances to a large amount, but there is not the least reason to suppose that Mrs. Wickham knew it. The deed of settlement did not embrace all of Mr. Wickham's estate, but certain specific property, consisting of bonds upon various persons and an interest in iand in Missouri. If Mrs. Wickham believed, as the neighbors believed, that her intended husband was a man of large fortune if she knew he owned the farms, without knowing of the incumbrances she might well regard the settlement as just and reasonable, and without injury to any one. It is said by an eminent American author, that, although one American case seems to intimate that a mere knowledge of the insolvency of the intended hus