John E. Hart, Executor of John Hart, deceased, Appellant, v. John Bucher.
Bond — Mortgage—Presumption of payment — Rebuttal of presumption— Receipt indorsed on bond.
Credits indorsed on a bond in the handwriting of the obligee are not sufficient to rebut the presumption of payment unless it is affirmatively shown that the indorsements were made within twenty years, and at a time when it was against the interest of the obligee to make them.
Argued May 17, 1898.
Appeal, No. 425, Jan. T., 1897, by plaintiff, from judgment of C. P. Lancaster Co., Dec. T., 1893, No. 28, on verdict for defendant.
Before Sterrett, C. J., McCollum, Mitchell, Dean and Fell, JJ.
Affirmed.
Scire facias sur mortgage. Before Brubaker, J.
The facts are substantially the same as those which appeared in the previous report of the case in 182 Pa. 604.
*385The court charged in part as follows :
[This presumption is prima facie evidence of payment; it is a strong presumption. The lapse of time can be explained bjr the plaintiff by sufficient evidence on his part to rebut the presumption. The presumption may be rebutted by showing direct payments, or by admissions, or statements or declarations by the defendant inconsistent with the presumption of payment. As I have said, the proof that must be furnished by the plaintiff must be satisfactory and convincing proof to you that the mortgage was not paid before he will be able to recover in this case.] [10]
[Now, gentlemen, that is the main testimony that I have submitted to you to ascertain the fact whether this mortgage has been paid or not paid. First, I say to you, the law presumes it is paid, and the plaintiff is bound to furnish you convincing proof, satisfying proof, to rebut this presumption before he can recover a verdict.] [11]
Verdict and judgment for defendant. Plaintiff appealed.
Errors assigned among others were (10, 11) above instructions, quoting them.
Wm. D. Weaver and Benj. E. Davis, for appellant.
A. J. Eberly and Brown Hensel, for appellee, were not heard.
May 30, 1898:
Per Curiam,
When this case was here before, we held that the credits indorsed on the bond, in the handwriting of the obligee, were not sufficient to rebut the presumption of payment unless it wa.s affirmatively shown that the indorsements were made- within twenty years, and at a time when it was against the interest of the obligee to make them : Hart v. Bucher, 182 Pa. 604. That principle was correctly applied on the second trial.
There is nothing in any of the twelve specifications of error that would justify a reversal of the judgment; nor do we think any of them requires discussion.
The case appears to have been carefully and correctly tried, and the judgment should not be disturbed.
Judgment affirmed.