Opinion
16950.
FEBRUARY 13, 1950.
Complaint for land, etc. Before Judge Guess. DeKalb Superior Court. October 17, 1949.
James R. Venable, H. C. Morgan, and Frank T. Grizzard, for plaintiffs.
H. O. Hubert Jr., and W. E. Cobb, for defendants.
Mere lapse of time after a debt becomes due may raise a presumption of payment. Where a bond for title was executed in 1910 and, as part consideration, four promissory notes were given, the last of which was due in 1914, in a proceeding filed in 1946, wherein it is sought to establish the non-payment of the notes in order to show title in the person executing the bond for title, and where the evidence to establish non-payment was not sufficient to overcome this presumption, a verdict for the defendant was demanded.
No. 16950. FEBRUARY 13, 1950.
This case was tried upon the consolidation of three separate proceedings.
On October 5, 1942, W. A. McWilliams filed a petition to enjoin proceedings in the court of ordinary, which proceedings sought to have set apart as a year's support to his mother, Mrs. Mary A. McWilliams, as the widow of D. L. McWilliams, a certain described tract of land containing 24.06 acres. It was there alleged that the land was the property of the petitioner and not of the deceased.
On May 8, 1945, W. A. McWilliams brought a dispossessory-warrant proceeding against his sister, Bertice McWilliams, for the same premises as described in the preceding paragraph. To this proceeding she filed a counter-affidavit and bond.
On January 22, 1946, when the above two proceedings were still pending, Bertice McWilliams together with her brothers and sisters filed a petition against W. A. McWilliams, her brother, in which she alleged that the plaintiffs and the defendant were the children of D. L. McWilliams, who died in February, 1931, seized and possessed of the title to the 24.06 acre tract of land; and that, since the death of their father, their mother had also died, thus making the plaintiffs and the defendant tenants in common of the land. The prayers were to enjoin the dispossessory proceeding, that the plaintiffs and the defendant be decreed to be tenants in common, and that the land be partitioned by sale.
By consent of the parties the two previously filed proceedings were consolidated with the foregoing case, and upon the trial the jury found for the defendant. To the overruling of an amended motion for new trial exceptions were filed.
The sole and controlling issue in the trial was whether or not the father, D. L. McWilliams, had title to the premises at the time of his death in 1931, of whether the title was in the defendant. It was admitted by the plaintiffs that in November, 1910, the father, D. L. McWilliams, executed a bond for title to the defendant covering the premises in question, and reciting an agreement to convey the premises in consideration of $100 cash and four notes for $150 payable November 1, 1911, 1912, 1913, and 1914; and they sought to establish the fact that these notes had not been paid, and therefore the title remained in their father at the time of his death. On this question Bertice McWilliams testified: "I heard a conversation between my father and brother concerning this place. He would ask him to pay for the place, and he would always put him off; he would tell him that he would pay him whenever he got hold of some money or sold cotton. I heard my father make that request three or four times. I heard him make it about a year before his death. He always claimed he paid for it but my father said he had not. I heard him tell my brother that. . . I saw the notes and the deeds too. I mean those four notes he owed my father that my father had before he died. I certainly did see those four notes. There were four that had not been paid off."
Mrs. Mize testified: "I heard them talk five or six times. The last time I heard them talk was about a year before he died. My father made a request of my brother to pay him. I never did see my brother pay him anything. The last time I heard him, my brother said he didn't owe him, and my father said he did. . . I guess these conversations occurred five or six years before he died. . . My father carried the deeds to Mr. . . Howard before he died. He carried them in September before he died in February, and he carried the four notes because I saw them." The notes were not produced, and the evidence disclosed there had been an administration upon the father's estate, and neither the notes nor the land had been administered upon as part of the estate. Whether the notes were under seal or not does not appear.
The defendant testified that he had paid the notes. He produced two of them, stating the other two were not delivered to him when paid, as his father claimed the other two were misplaced. They were all paid in full about 1920. His father had never delivered him a deed to the premises. He had been in sole and uninterrupted possession of the premises since 1910, returning and paying taxes thereon, and about four years ago built another house on the premises as a home for his mother.
The evidence to establish the non-payment of the notes in question was not sufficient to overcome the presumption of payment by reason of the lapse of time from the date the notes were due and the time of the institution of the proceedings. The last of the notes here in question was due November 1, 1914; and the action depending upon the non-payment thereof was not instituted until January 22, 1946, a period of more than thirty-one years.
Mere lapse of time after a debt becomes due may raise a presumption of payment. "A judgment is presumed to be paid after twenty years." Burt v. Casey, 10 Ga. 178; Willingham v. Long, 47 Ga. 540 (1); Collier v. Bank of Tupelo, 190 Ga. 598, 602 (4a) ( 10 S.E.2d 62). "After the lapse of thirty years and upwards, it is legitimate to presume that all the debts of an estate, if there were any, have been paid." Coleman v. Lane, 26 Ga. 515 (1). The law presumes that after twenty years the purchase-price for land has been paid. Patterson v. Campbell, 136 Ga. 664 (4) ( 71 S.E. 1117). See also 48 C. J. 690, 693. Conversely, where land was purchased on credit, in a trial on the issue of whether or not the full purchase-price had been paid, the failure to take up the notes or to obtain a deed does not raise a presumption that the purchase-price had not been paid. Elliott v. Banks, 115 Ga. 926 (4) ( 42 S.E. 218). For other cases dealing with the presumption of payment from the lapse of time, see Milledge v. Gardner, 33 Ga. 397; Hooper v. Howell, 52 Ga. 315 (3); Janes v. Patterson, 62 Ga. 527 (3); Norton v. Aiken, 134 Ga. 21 (4) ( 67 S.E. 425); Gamble v. Burney, 169 Ga. 830, 832 (3) ( 152 S.E. 73).
In view of the undisputed evidence that the defendant had been in sole and absolute possession of the premises for more than thirty years, that he was in possession of two of the notes with payments appearing thereon, and the other two notes were not produced, that no proceeding for the collection of the notes or the recovery of the premises had been instituted for more than thirty years, the presumption of payment arising from such facts was not overcome by the testimony of Bertice McWilliams and Mrs. Mize, which, at best, was vague and indefinite as to non-payment.
Under the facts, the defendant had a perfect equity, equivalent to a legal title (see Toms v. Knighton, 199 Ga. 858 (1) 862, 36 S.E.2d 315, and citations), which demanded a verdict in his favor; and, accordingly, it becomes unnecessary to rule upon the questions raised in the amended motion for new trial.
Judgment affirmed. All the Justices concur, except Duckworth, C.J., who dissents.