Debt, commenced 31 July, 1837, on a bond given by the defendant's intestate and one John Vaughan on 15 August, 1811, payable 31 August, 1811. The defendant pleaded "payment," and to establish it, relied on the presumption of payment from the lapse of time. This presumption was attempted to be rebutted on the other side by proof of the insolvency of the defendant's intestate, connected with his residence at a great distance from the place where the plaintiff resided. It was admitted that the plaintiff resided in Norfolk, Va., and the defendant's intestate, (199) after his removal in 1812 from North Carolina, where the debt was contracted, resided until his death, in 1819, in Mississippi. John Vaughan, the other obligor, it was admitted, had always been insolvent. The plaintiff's witnesses deposed that the defendant's intestate was insolvent when he came to reside in Woodville, Miss., in 1812; that his practice then as a physician did not more than defray his and his family's ordinary expenses; that he was never able to pay for the house *Page 153 in which he lived, of which the price was only $250; that the left at his death some of his store bills unpaid, and from the insolvency of his estate they never will be paid; that he was insolvent when he died, leaving his only child upon the charity of his friends. It was also proved that, a short time before his death, he wrote a desponding letter to his brother in this State, complaining of his continuing distressed circumstances as to property and his bad state of health, and begging his brother to take care of his child in case of death, which he shortly expected. It was proved that this letter was of the same character with many others to his brother during his residence at Woodville. The plaintiff's witnesses deposed that at no time from his coming to settle at Woodville to his death was he able to pay a sum equal to this debt, except the current bills for the support of himself and his family, and, indeed, he did not pay all of them. On the other hand, the defendant's witnesses deposed that when the defendant's intestate went to Woodville in 1812 he was insolvent; that he then commenced the practice of medicine and had a very good practice, supposed to be worth upwards of $2,000 a year, up to the year 1817 or 1818, when from his bad health he was compelled to give up his profession; that he then obtained $5,000 or $6,000 worth of goods and carried on merchandise for about 18 months, until his death, in 1819; that he was in possession of a dwelling-house and lot, a storehouse and a doctor's shop; that he was reported to be solvent and in good credit; and these witnesses gave it as their opinion that he was able in those times to have paid the debt now sued for. The (200) defendant's counsel prayed the court to instruct the jury as follows: 1. That if upon the evidence before them they should be of opinion that the defendant's intestate was, during his residence at Woodville, in Mississippi, solvent and able to pay the plaintiff's debt, then the presumption of payment was not repelled, and they should find for the defendant on his plea of payment. 2. That if upon the said evidence the fact of the intestate's solvency during his said residence was left in doubt, so that the jury should be unable to say from the evidence whether he was solvent and able to pay, or the contrary, then, as it was for the plaintiff to show the insolvency affirmatively, the defendant was entitled to the benefit of the doubt, and the jury should find for the defendant on his said plea. 3. That if the evidence did not show to the jury a continued inability in the said intestate to pay, from 21 August, 1811, till his death, the presumption of payment remained, and the jury should find for the defendant on his said plea. 4. That if the jury believed the witnesses for the defendant instead of those for the plaintiff, and found the solvency and ability of the said intestate to be as stated by the said witnesses for the defendant, then the presumption of payment was not repelled, and they should find for the defendant on his said plea. 5. That *Page 154 in passing upon the plea of payment the jury were not at liberty to consider the residence of the parties — that is to say, that of the plaintiff in Virginia and that of the intestate in Mississippi — as repelling the presumption of payment or as affording any evidence tending to repel the same.
The court declined to give these instructions as prayed for, but instructed the jury that whenever a bond like the one before them had continued to lie for 20 years or more after it fell due, the law declared it should thereafter lie under a presumption of payment; that the jury, therefore, in investigating the case, should begin by assuming the legal position that the bond in question is paid, and then proceed to inquire whether there is proof sufficient to satisfy them that it is not paid; (201) that it would be erroneous for the jury to consider the case upon the point of inquiry whether there is proof of payment in the defense; that the plaintiff, to entitle himself to recover, must make out, as a part of the case, not only that the bond was executed, but that it remains unpaid; that proof of the negative was an active duty, which the law cast upon the plaintiff, and if he had not performed that duty he had not entitled himself to the verdict of the jury. The jury were then directed to consider the whole testimony and determine whether the presumption of fact that the bond was paid had been disproved or rebutted — whether the proofs with regard to the pecuniary embarrassments of the defendant's intestate and the distance of his separation from the plaintiff, taken together, were sufficient to satisfy them that the said obligor could not and, in point of fact, did not pay the bond. If the proof be sufficient and the jury be satisfied, that the presumption already explained has been repelled, there should be a verdict for the plaintiff; otherwise, if the jury be not satisfied, the presumption which the law raises must have its effect, and the verdict should be for the defendant. The jury were informed, in conclusion, that the court could not say there was no proof tending to show that the bond was not paid. There was believed to be some proof (such as that already mentioned) bearing upon this point, and it was submitted to them. Whether it be sufficient for the purpose was a question for the decision of the jury.
The jury found a verdict for the plaintiff, and, judgment being rendered thereon, the defendant appealed. The defendant now insists that if upon the testimony in this case the jury had a doubt whether William Vaughan, at any time whilst he remained at Woodville, was able to pay this debt, then he was *Page 155 not insolvent within the meaning of the law declaring that circumstance sufficient to repeal a presumption of payment after a lapse of 20 years. The answer is, that the court left it to the jury to say whether William Vaughan "could not pay" during that time; and the jury (202) by their verdict have said that he could not have paid the debt during that time. If the evidence had been sufficient to have raised adoubt in their minds, we suppose that they would not have returned a verdict that he was not at any time able to pay the debt. William Vaughan was insolvent when he gave the bond, and also when it became due. He removed to Woodville, a considerable distance from the plaintiff's residence, and in eight years thereafter he died insolvent. The judge, in his charge to the jury, did, it is true, mix up the circumstance of distance between the parties upon the point whether Vaughan could and at any time did pay during that period. The defendant contends that for a small space of time (18 months) in the said 20 years Vaughan was (by his witness) proved to have had in his possession at Woodville a house and lot and other property, worth from $5,000 to $6,000; and, therefore, that he (Vaughan) was not continuously insolvent during the whole space of 20 years from the time the bond became payable. The law makes it the duty of the debtor to seek his creditor and pay him. Take the fact to be, then, that for the space of 18 months during the latter part of the first 7 or 8 years in the 20 years from the time the bond became payable Vaughan did have at Woodville the means of payment, then the circumstance of distance between the debtor and the creditor might, we think, be left to the jury, with the fact of a continuous insolvency during the residue of the 20 years, as some evidence that the debtor did not pay the debt during that small space of time. It comes within what was said by this Court (McKinder v. Littlejohn, 23 N.C. 66), that the repelling of the presumption will not be hindered by the fact that the debtor had a reversionary interest in certain slaves which vested in possession but a short time before the suit was brought, when it did not appear that the creditor knew of the existence of the reversionary interest. The distance is material only as preventing the possession of property by the debtor for but a short period from counteracting the effect of insolvency as a circumstance repelling the presumption (203) of payment; for if the debtor, living more than a thousand miles from the creditor, and in a situation between which and the place of the creditor's residence there was but little communication, should have had in possession property of value to pay the debt but for a very short time, so that the jury should think the creditor did not know of it and could not get payment out of that property, it might be regarded as being, substantially, a continued insolvency, especially where, as here, the debtor seems barely to have had possession of property, without its *Page 156 appearing how he got it and whether he had paid for it. Immediately afterwards, his state was that of absolute destitution. Therefore, we think the residences of these parties was, in reference to the other facts, some evidence in aid of the insolvency and general state of destitution of the debtor. Lastly, we think, of course, the court ought not to have charged the jury, as prayed, that if Vaughan had in his possession any property at Woodville, or any where else, then that fact took him out of the state of insolvency, which would repel the presumption of payment after the lapse of twenty years. Although he might be able to live, yet if wholly unable to pay this debt, it is justly to be considered insolvency throughout. The judgment must be affirmed.
PER CURIAM. No error.
Cited: Walker v. Wright, 47 N.C. 157; Woodhouse v. Simmons, 73 N.C. 32;Grant v. Burgwyn, 84 N.C. 568; Rowland v. Windley, 86 N.C. 38;Campbell v. Brown, ib., 378; Long v. Clegg, 94 N.C. 766; Alston v.Hawkins, 105 N.C. 7.
(204)