By the Court,
Nelson, Ch. J.This suit was commenced in July term, 1840, and from the year 1800 down to the commencement, there is no proof of any claim or demand upon the defendant for the balance of the purchase money, said to be due upon the contract of purchase at that date— an interval of some forty years—during all which time, it is not denied that he was abundantly able to pay it. The conversations detailed in the case by which it was sought to prove an admission of non-payment during this period of time, clearly refer to a different purchase, and have no bearing upon the premises in question, except it is somewhat remarkable that while the widow and her son-in-law, Mr. Brotherson, made application for money several times in respect to this other purchase, nothing was ever claimed as remaining due upon the one in question.
It seems to me the presumption of payment and conveyance in pursuance of the contract is inevitable; and although, strictly, the inference is one to be drawn by the jury, yet where the weight of the proof is so decisive as in this case,' that if the jury had found against it we should have felt bound to grant a new trial, such a disposition as was made at the circuit may be upheld.
New trial denied.