#### Hunt and Others *against*Forman.

Chancery.

The savings in favcr of nonresidents, in the statute of limitations, having been repealed by the act of ’23, it may well bedoubfed.whe ther the chancellor should now place them on any better footing than residents.

A comp’t in chancery, seeking to enforce a demand of more than 20 years standing, must account for his delay, *fy*show, by explicit averments *in Ms bill,*such fiiets, as will rebut the presumption of payment arising from lapse of time.

In case of a bond and mortgage, the presumption of payment, from lapse of time, cannotbe rebutted by showing *the insolvency*of the-debtor ; for as to the mortgagee and his debt, the debtor is not insolvent, because the creditor could, at any time, resort to the mortgaged premises, for payment.

fMr. Ilaggin and Mr. Crittenden for Plaintiffs: Mr. Dana for the Defendant.]

From the Circuit Court pos Franklin County.

*November*17.

At the Fall Term, 1333, Judge Nicholas delivered an opinion, reversing this case. A rehearing was granted, and the reargument took plae.e, during the last. Spring- Term.

Judge Underwood

now delivered the following Opinion

Judge Nicholas concurring : the Chief Justice dissenting.

Form&n filed a bill to foreclose a mortgage executed by Throckmorton, after a lapse of more than twenty years. Hunt &o., vendees of Throckmorton, resist the demand set up, upon the presumption of payment resulting from lapse of time, and insist, that time alone constitutes a bar to the relief sought.

Forman attempts to escape the effect of time upon his demand: *first,*upon the ground that he was a non-resident ; and secondly, upon the ground that Throckmorton was insolvent.

Since the repeal of the savings in our statutes of limitations in favour of non-residents, it may be well doubted whether the chancellor should, in any case, put a nonresident complainant upon a more favorable footing than a resident; but if there still exists an exception in favour of non-residents, Forman has not shewn himself entitled to it. He was in this state when the mortgage was executed. That, at least, is the legal presumption ; for how else was the note .and mortgage executed and delivered? He does not allege lie was not here upon the execution of the note and mortgage. When he left the state does not appear. He may have remained here ten years, and have made a dozen visits since, for ought this court knows. After so long a delay, it was his duty by positive averment to shew every fact necessary to account for the delay ; and this should be done in his bill, *472before tbe chancellor ought to listen to his complaint,' about a demand so stale. '

ÍDíSSENT and *^ofthe^faltTsf pleadings,*by *tice*— whofsof opinion, that absence^?1 the creditor from the insolvency of the debtor— facts which he conceives are sufficiently alleged and proved in this case *473—are either of them sufficient :to rebut the presumption of paymentarising from lapse of time: and, that the presumption ofnonpayment, arising from the debtor’s insolvency, is not rebutted, but rather confirmed,, by the existence ofa mortgage to secure the debt.

*472Disregarding Forman’s non-residence, the *second*enquiry is as to the effect of Throckmorton’s insolvency. This cannot account for Forman’s deláy. In respect to him and bis debt, Throckmorton was not insolvent, because of the security resulting from the mortgage. Forman cannot say, I did riot pursue my debt because Í could get nothing, or, i5f he should say so, the answer is, you could have got it out of the mortgaged property, and if you did not, the presumption is, after twenty years unexplained delay, that the debt was otherwise paid, or, that it never had a *bona fide*existence. Suppose joint obligors, or joint and several obligors — principal and surety, and the obligee delays for twenty' years; can lie then sue, and repel the presumption of payment liv proving that the principal was insolvent during the whole time? The fact, that he could have made the debt out of the surety, and did not, should conclude him, because it is contrary to the ordinary course of human .conduct to hold up a just demand for twenty Years, when it can be collected. Besides the insolvency is not alleged, it is only charged that Throckmorton was in ■ “ *humble circumstances.'”*

Decree reversed, and cause remanded with directions *io*dismiss the bill (Chief Justice dissenting.)

The Chief Justice’s

Dissent.

My opinion is, that there is not sufficient ground, in ^'*s case' ^01' *presuming*payment of the' debt.

*First.*The representatives of the mortgagor have not f'Meged, °r intimated, that the debt had ever been paid; but, as to them, the bill has been taken for confessed.

*Second.*Hunt, who holds as a subsequent purchaser, for one thousand dollars only, does not allege, that the debt had ever been paid; but only relies on the lapse of time as, in his judgment, sufficient to repel the mortga- gee’s right to a foreclosure.

*Third.*Either the non-residence of the mortgagee, or ... ,. , . — . * . the insolvency *at*the mortgagor, is sufficient, *in*my *473opinion, to repel the presumption arising from the trfefe lapse of time ; and I think, that both the non-residence and insolvency haye been satisfactorily alleged, and established. The allegations of the bill cannot', I think, be fairly or consistently understood otherwise, than as importing, that the mortgagor had no means of payment, except the land which was mortgaged-; and the prOof abundantly shews, that he was insolvent, and continued to.be hopelessly so to his death, in 1813.

The non-residence of the mortgagee is plainly alleged in the bill, and the allegations obviously imply, that he was not in this state when the debt became due, and has never been here since': moreover, the bond and the mortgage both describe him as a citizen ©f New Jersey; and ! think that" the mortgagor, and all others claiming under him, are estopped, so far as not to be -allowed to deny, or require proof of, the fact so recited in the bond and in the mortgage. Without -any proof, or even intimation, to that effect, /cannot presume that the mortgagee remained from home, and in this state, for one yeai‘ after the execution of the mortgage ; and feel bound; therefore, to presume, .that he has not been in Kentucky ■since the debt became due, which was one year after the date of the mortgage.

The statutes, placing non-residents on the .footing of residents as to the limitation of actions, do not, in my opinion, *destroy*the efficacy of' non-residence in repelling, *asa fact,*the presumption, arising from lapse of time merely, that a debt has been paid. The reason why continued non-residence may repel the presumption of payment, is, because it shews the improbability of payment.

Nor can T admit, that the collateral security destroys the repeilant efficacy of the mortgagor’s insolvency.

The insolvency of the obligor may rebut the presumption of payment. *Moreland*vs. Bennet, 1 *Strange,*652; *Rex*vs. *Stephens,*1 *Barrow,*431; 1 *Coventry's Powel,*391, *note*1;—and it was evidently the opinion of Coventry, that the fact, that the obligee had a collateral security by mortgage, will not destroy the rebutting efficacy *474*of*the obligor’s insolvency. *See notes to the first volume of Coventry's Powel, from*391 *to*399 *inclusive.*

And is not this doctrine reasonable, consistent, and just ? In a suit on a bond, which had been due for twenty years without any intermediate payment of interest, or any demand or acknowledgment, would a jury, after proof of the obligor’s insolvency during the whole *time,*decide, that the debt- had been paid, merely because the obligee held a mortgage, *which he had never enforced, and which afforded him ultimate*security, *not only for the principal debt, but for its accruing interest*? No case, as I confidently believe, can be found to sanction any such notion. The most rational inference that such a security would authorize, is, that the mortgagee had either taken the thing mortgaged in full discharge of his debt, or that, feeling sure of ultimate payment, he.had preferred to let his money, thus secured, lie as a productive fund, yielding an annual increment- of six *per "cent, per annum.*

The legal, as well as rational, *inference*from the obligor’s insolvency, is, that he could not have paid the debt without selling the' mortgaged property, or his equity of redemption therein. And in this case, there •is no pretence for presuming that, by any such sale, the debt was paid ; because, the mortgagor’s interest had been sold, in the year 1810, for only thirty three dollars, and he died utterly insolvent in 1813.

The existence of the collateral security, therefore tends, in my judgment, to impair, rather than to fortify, the presumption of payment. Had there been personal, instead of real security, surely an acknowledgment by the surety, that he had never paid the debt, ought to be sufficient to repel any presumption that it had been paidy when it is proved that the principal obligor was never able to pay it.

Here it is evident, that the land never paid the debt; and therefore 1 cannot presume, that the insolvent debt- or paid it; more especially when there is not *only no*such allegation, but an admission by his representatives that he never did pay it.

*475it is my opinion, therefore, that the decree of the circuit court ought to be affirmed.

On the facts of this case, a suit at law on the bond, could not, I think, be barred by mere lapse of time; and, consequently, as the creditor is entitled to payment, I am unwilling to take from him his only means of obtaining payment, that is, a decree declaring that, *unless the debt be paid,*the *equity of redemption*shall be barred and foreclosed.