#### *A. J. McQueen and wife*vs. *Joshua Fletcher and others.*

The existence of a judgment and other proceedings in partition, in the Common Pleas, established on parol evidence.

*Quere:*where, on proceedings in partition under the Act of 1791, land is allotted to one distributee, and he is required to pay another 'distributee a sum of money in lieu of his share of the land, does the judgment transfer the title, irrespective of the payment of the purchase money, and establish only a lien on the land, or is the title not vested until payment of the money ? *(a)**.*

*The*presumption of payment -which arises from the lapse of twenty years, is not a presumption of law, but a strong presumption of fact, which shifts the burden of proof.

In considering admissions, relied on to rebut the presumption of payment, the same principles are applicable which apply where admissions are relied on to take a case out of the statute of limitations.

So long as the lapse of time is less than twenty years, any admissions which op-pugn the inference of payment drawn from it, go to the jury along with it, and all are weighed together according to their natural force: but when full twenty years have expired, an admission, that the payment has not in fact been made, cannot, *of itself,*destroy the effect of the presumption.

In estimating the time sufficient to raise the presumption that a judgment has been paid, the period during which the plaintiff was under disability from infancy must be deducted: *Semble**(b)*

A judgment in partition vesting the land in W. A. on his paying C. A. a sum of money in lieu of her share, *held,*as against a purchaser of the land from W. A., not to be satisfied, although twenty-four years had elapsed since the judgment was rendered, — it appearing that C. A. was an infant, about two years old, when the judgment was rendered, and W. A. having admitted the non-payment of the money.

In 1833, defendant purchased land on which plaintiff, then an infant, had a *lien*under a judgment in partition: in October, 1845, plaintiff arrived at age, and in September, 1850, filed her bill against defendant *Held,*that defendant was not protected by the statute of limitations.

*Before*JOHNSTON, Ch. *at*Marlborough, *February, 1851.*

This case will be sufficiently understood from tbe decree of the circuit Chancellor and the opinion delivered in the Court of Appeals.^ The circuit decree is as follows:

*153JoirNSTON, Ch. I do not deem it necessary to state every particular point or fact brought to my view at the hearing; I shall state only the substance, leaving the rest to appear in the pleadings and notes.

The case is shortly this :

The plaintiff, Mrs. Caroline McQueen, is one of the daughters of Shockley Adams, late of Marlborough district, who died intestate, the 10th of October, 1824. At his death, he left as his distributees, his wife, Isabella, and eight children, of whom it is necessary to mention only three, namely: Ym. L. Adams, (who became his administrator,) Harris R. Adams and Mrs. McQueen.

The intestate was, at his death, the owner, in fee simple, of three tracts of land, lying in Marlborough, and which are the subjects of litigation in this case, viz:

1. The plantation denominated in the pleadings the *Some*Tract, or *Souse Place,*containing two hundred acres, more or less. This tract, the widow, who was in- possession of it at the time, and had been from 1825, sold to the defendant, Rethea, in 1836; and he took possession, which he still retains.

2. The tract called the *Mill Tract,*of six hundred and two acres, more or less. This tract was levied on by the sheriff as the property of Ym. L. Adams, and sold to the defendant, Fletcher, the 20th of December, 1833, at the price of three thousand dollars.

3. A tract called *Sasterling,*containing three hundred acres, more or less. This tract was levied on and sold as the property of Harris R. Adams, and bought by the defendant, Joel Easter-ling, for six hundred dollars, to whom the sheriff conveyed it the 4th of March, 1836.

It is admitted, that by these purchases, the defendants acquired not only the title of those from whom they bought, but of all the othe'r' distributees of the intestate, except Mrs. McQueen. The contest is as to her rights in the land. The plaintiffs contend that she is still entitled to a distributive share of the lands, and to a partition of them with the defendants, respectively; and for this *154purpose the bill (which was filed the 14th of September, 1850,) is brought. The defendants, on the contrary, maintain that the widow and the two sons, whose title they took, held and were entitled, at the time of their sales, to a full and complete title, in exclusion of Mrs. McQueen, and not subject to a partition with her.

The question in this case is, whether the plaintiffs or the defendants are correct in the positions taken by them.

Mrs. McQueen was once entitled to a distributive share of these lands, and if this right has been defeated, or she has been satisfied for it, it is incumbent on the defendants to shew how this has been effected. Being sensible of this, they have undertaken to make the shewing required.

They allege, that as far back as 1826, a proceeding in partition was had in the Court of Common Pleas, by which the lands bought by them from the widow and the two sons, were allotted *to*those parties, respectively, who took possession under the judgment in partition and held the property as their own, and it was so bought, and has been so held by the defendants.

The plaintiffs reply to this, that if there was any such proceeding, — which they do not admit, — Mrs. McQueen was no party to it, and was not bound by it; and they demand the production of the record.

Again. They insist she was entitled to have either a portion of the land, or compensation. That no portion was ever assigned to or received by her; and if any compensation was ever adjudged to her, it has never been paid.

Thirdly. They say that Mrs. McQueen was a minor until 1845, (and this is not denied in the answer, though alleged in the bill:)— and that, therefore, no presumption can arise against her, of acquiescence, or forfeiture of right, by reason of adverse possession, or any other transaction by which she may be supposed to" have affirmed the supposed partition. It was also proved that she intermarried with her co-plaintiff as far back as 1838 or 1841, during her minority.

*155No record in partition has been produced: — and yet I think there is evidence to establish a partition, and that, under the necessary presumptions of law, it must he held conclusive of the rights claimed in the present bill.

The following extract from the proceedings of Spring term, 1826, was given in evidence:

*“*Isabella Adams and others, 1

*vs.*>Writ in partition.

W. L. Adams, adm’r. of Shockley Adams, j

The commissioners appointed to divide the *real*and *personal*estate in the writ mentioned, having made their return, certifying a partition of said estate: — on motion of Mr. Ervin, attorney for plaintiffs, ordered, that the said return be confirmed; and that they have leave to enter up judgment thereon.”

It is true, there is no record of any other part of the proceeding produced; and if we are to know what the proceeding was,— what partition Was -made, and its terms, — who were parties, — and who are bound, — we must learn it from parol or depend upon legal presumptions and inferences to be drawn from the antiquity of the proceeding.

' This is all very lame. It exhibits a wretched state of neglect; and it exhibits to what a most shocking state of preeariousness the rights of citizens, that ought to be strictly guarded by public officers, may be reduced by the carelessness and criminal indolence .of those officers. But, still, I think the rights of other citizens are equally to be regarded; and'that their security demands, that such inferences should be drawn, from what little of the record is preserved, as are material and reasonable.

It has been shown that Mr. Ervin, 'the attorney in the record, is dead; that his office and papers have been searched, and no other traces of the proceeding found ; that the clerk’s office at the time, and for years before and after, was negligently kept; that Vm. L. Adams, in whose hands some of the papers might have been, in order to accounts and settlements in the ordinary’s office, is out of the State ; and that such papers as he left behind him *156have been searched without effect. The present clerk has made diligent search, and can find no further fragments of the record. The ordinary’s office has been searched in rain.

That there was a writ of partition, and that it was returned to the Court, and an order granted upon the reading and inspection of the return, we cannot doubt: for that order is produced. That every thing was regular up to that time, we are bound to presume. The record being lost, we must resort to secondary proof of its purport and contents. One of the commissioners was sworn, and proved that a writ issued, and that he assisted in executing it. Mr. McCollum testified that the *Some Tract*was allotted to the widow at $8,800. He does not remember whether a contribution was required of her; but, from other evidence showing the value of the real and personal estate, the subject of division, it would appear that the tract assigned was less than one-third part of the estate. He says the BOO acre tract (.Easterling) was assigned to Harris R. Adams; and he was to contribute something under $1000 for equality of partition. That the *Mill Tract*was assigned to Wm. L. Adams at about $4500; but what he was to contribute witness does not remember. The return specified the sums to bo paid by the different parties for equality of partition.

It appears, also, that Mrs. McQueen received certain negroes in the division, which are now in her husband’s possession; and that in an account stated before the ordinary, by Wm. L. Adams, the administrator, with Dr. Malloy, who either was or assumed to act as her guardian, the administrator was charged with the balance due her of the whole real and personal estate, after deducting the specific property which she received, and the payments that had been made; and the ordinary gave a decree for the balance, (about $1000). Eor this balance, suit was brought by her and her husband, after her marriage. The suit was against a surety to the administration, who showed on the trial that in the sum of $1000, sued for, was included $687 05 for her share of the realty, which was accordingly deducted from the surety’s liability. This was shown by the testimony of Gunter, a husband of one of in*157testate’s daughters. On that occasion, he also testified to the division,, as proved by McCollum.

Now, under this evidence, (throwing out that of Wm. L. Adams,) would it be reasonable to say there was no partition, or that the lands were not assigned as the defendants insist they were ?

The fact of partition is still further confirmed by the pregnant circumstance, that, though the parties to whom the property was allotted were in possession, as of their own property, from 1826 until the day of their alienations, no application was made by any one of the numerous distributees for another division; and though the widow alienated her land in .1833, and those of the two sons were publicly sold as their property in 1836, no question was raised by any distributee as to the exclusiveness of their titles, ’till the filing of this bill in 1850.

Was Mrs. McQueen a party ? Am I not bound to presume that the Court did its duty, and that it would not have authorized the entering up of judgment without seeing that all proper parties were before it ? Is not the presumption of her participation in the proceeding confirmed by the reception and retention of the negroes allotted to her in the division, and by the accounting before the ordinary, especially as suit was brought by her on that accounting ?

Assuming that there was a partition, — that concludes hor right to have another partition. Her right in the *land*is gone, and is vested in the parties to whom it was assigned. *Transit in r&m judicatam;*and when a judgment has been rendered upon any right or claim, that claim cannot again be stirred or litigated. The remedy is by enforcing the judgment. This is very clear. If by the partition made, any sum was decreed to Mrs. McQueen , for equality of partition, that is another matter. Her right was in that case reduced to a mere money claim.

If she claims for money due her, the burden is upon her to shew the decree for it, and the amount decreed. I am not sure that the. evidence is sufficiently explicit as to this point.

Suppose it to be so. That judgment should be regarded as *158baring been entered up in 1826; and the legal presumption of satisfaction arose before 1850, when her bill was filed. I am not aware of any authority or principle by which the vigor of this presumption would be impaired, or its currency suspended by her infancy or coverture.

But the statute of 1791 gives a *lien*for the purchase money of an intestate’s land sold for partition; and by a fair construction, I suppose, such lands are liable, also, for sums necessary to produce equality of partition ; and I may be told, that, independently of the judgment in partition in this case, this *lien*still subsists: — but I hold that the same lapse of time which would presume satisfaction of a judgment, a mortgage, or specialty debt, will raise a similar presumption under a statutory *lien.*A period of twenty-four years had elapsed before the bill was filed; and the claim is stale.

It is ordered that the bill be dismissed.

The complainants appealed, on the following grounds :

1. Because it did not sufficiently appear from the case made by the pleadings and evidence, that any partition of the lands named in the bill, binding upon Caroline McQueen, the complainant, and divesting her title in said lands, was made in 1826, as his Honor has decreed.

2. Because even if there had been a valid partition of the said lands made in 1826, yet as it clearly appeared that no land was allotted to Caroline, but in lieu thereof a sum of money was ordered to be paid her, and it clearly appeared that the said sum of money was never paid, but is still due; his Honor should not have dismissed complainant’s bill, but should have ordered a reference

to the commissioner, to ascertain and report the sum actually due to the said Caroline, and should have subjected said lands to the payment of said sum of money.

3. Because his' Honor was in error in *presuming*satisfaction and payment of the supposed common pleas judgment of 1826, in .favor of the complainant, Caroline, from the *lapse of time*since *159it was rendered, although the said Caroline was an *infant*for nearly the whole of that time.

*Thornwell,*for appellants.

-, contra.

(a)

*Burris*vs. *Gooch,*5 Rich. 1.

(b)

*Vide Lamb*vs. *Crosland,*4 Rich. 536.

The opinion of the Court was delivered by

DüNKIN, Oh.

This Court is entirely satisfied with the judgment of the Chancellor in relation to the proceedings in partition. The parol testimony was properly received under the circumstances, and very fully established the existence of the record. *Smith*vs. *Smith,*Rice, 232, is an authority for the admissibility of the evidence, and for setting up a judgment in partition on less satisfactory proof.

The Act of 1791, (5 Stat. 164,) provides that, where the land cannot be fairly and equally divided, the commissioners shall make a special return, certifying to the Court their opinion, whether it will be more for the benefit of the parties to deliver over to one or more of them the property which cannot be fairly divided, upon the payment of a sum of money to be assessed by the commissioners, or to sell the same at public auction; and, if the Court shall be of opinion that it would b.e for the benefit of the parties, that the same shall be vested in one person or more persons entitled to a portion of the same, on the payment of a sum of money, they shall determine accordingly; and the said person or persons, on the payment of the consideration money, shall be vested with the estate so adjudged to them, as fully and absolutely as the ancestor was vested. But, if it shall appear to the Court to be more .for the interest of the parties that the same should be sold, they shall direct a sale on such credit as they shall deem right; and the property so sold shall stand pledged for the payment of the purchase money. In this case, the intestate left a widow and eight children.' It appears, that at the time of the partition in 1826, the complainant, Caroline, was about two years of age, and was represented by her brother and guardian *acl litem,*William L. Adams. The testimony shows that the commissioners executed *160the writ by setting off the three tracts of land to three of the parties in interest, to wit, the widow and two of the sons. The evidence, both of William L. Adams himself, and of John McCol-lum, one of the commissioners, proves that William L. Adams, -who took the tract valued at $4500, was to pay to his sister, the complainant/the sum assessed to her in lieu of her interest in the land. The other evidence shews, with reasonable certainty, that this sum, after deducting her share of the costs, was six hundred and eighty-seven dollars and five cents ($687 05). By the order of the Court of Common Pleas, at Spring term, 1826, this return of the commissioners was made the judgment of the Court. On the part of the complainants, it is insisted, that by the terms of the Act, no title vested in William L. Adams, until payment of the consideration money. While the defendants urge, and so the Chancellor held, that, by the judgment in partition, the right of the minor in the land was gone, and that her only *remedy*was by enforcing the judgment, and that although the statute gave a lien upon the land, both ¡.the judgment and statutory lien must be presumed to be satisfied from the lapse of time. It is not important in this case to determine whether the judgment transferred the title, irrespective of the payment of the purchase money, and established a *lien*on the premises, or whether the title was only to be absolute on compliance with the condition. If the Court is satisfied, whether by presumption or positive proof, that the purchase money was paid, the title in William L. Adams, by the terms of the law, was as full and absolute as his father’s had been. And so, if the judgment transferred the title and created a *lien,*and yet the Court is satisfied, by presumption from lapse of time or otherwise, that the debt has been paid, the judgment is gone, and the lien, which is merely an incident, has ceased to exist.

It is admitted, that there is no positive proof of payment to the complainant, (Caroline,) or to any other person acting for her, of the sum assessed to her and adjudged to be paid to her by William L. Adams. But it is said that more than twenty years have elapsed since the entry of the judgment, and that, after this ' *161lapse of time, it must be presumed to be satisfied. Tbe Court of law had occasion to consider this doctrine in the recent case of *Stover*vs. *Duren,*3 Strob. 448. It is there said, “ The presumption of payment, which arises after the lapse-of twenty years, is not a presumption of law, but is a presumption of fact, recognized by law, from which a conclusion ought to be deduced by a jury. It is, however, one of those strong presumptions which shift the burden of proof,” &c. In that case some twenty-six years had elapsed since the entry of the judgment, and the presiding Judge had held tha't, after the lapse of twenty years, mere acknowledgments were insufficient to rebut the presumption ; that if there had been no payment of interest, no promise to pay, no other sufficient rebutting cii;cumstance, then an acknowledgment, in order to suffice for rebutting the presumption, should be a distinct admission of the subsisting legal obligation of the debt, unaccompanied by any conduct or expressions indicative of an unwillingness to pay. The Court say, “ We perceive no objection to the rule thus stated to the jury. The presumption is no legal bar, but it was originally admitted in analogy to the statute of limitations, and in considering admissions which rebut it, the same principles are applicable as in considering admissions which take the case out of the statute of limitations.” So long as the lapse of time is less than twenty years, any admissions which oppugn the inference of payment drawn from it, go to the jury along with it, and all are weighed together according to their natural force. But when full twenty years have expired, an admission that the payment has not in fact been made, cannot, *of itself,*destroy the effect of the presumption. Upon a similar analogy it has been held in this Court, that the period during which a plaintiff was under disability from non-age, shall be deducted in estimating the lapse of time sufficient to create a presumption of ouster, &c. In *Gray*vs. Givens, 2 Hill Ch. 514, it is said, the time during which the party to be affected was under disability must be deducted in computing the lapse of time, in analogy to the statute of limitations — otherwise, as Chancellor Harper hypothetically stated in that case, and *162might very well have happened in this, a party may be barred before he had an opportunity of either asserting or knowing his rights. A judgment entered in favor of an infant twelve months old, and represented only by a guardian *ad litem,*would be presumed to be paid by lapse of time, before she was of age or had any authority to receive the money, or could execute a valid acquittance.

But apart from this. It has been said that the complainant,, (Mrs. McQueen,) was an infant about two years old at the time of the partition in 1826. She became of age in October, 1845. William L. Adams was also administrator of the estate of his father (the intestate.) On the 2d December, 1834, a settlement took place before the ordinary between William L. Adams and John Malloy styling himself guardian of Caroline E. Adams, (the complainant,) on account of her share of the real and personal estate of her father to which she was entitled. After deducting payments a balance was admitted to be due, and a decree entered by the ordinary for $1,069.50. In September, 1847, suit was instituted by the complainants, in the name of the ordinary, against the surety of William L. Adams as administrator, on the decree made in December, 1834. A verdict was obtained against the surety of the administrator deducting the value of the complainant’s interest in the real estate which, (as proved by the defendant’s solicitor in this case,) was shown on the trial to be $687.05. It was proved at the hearing that William L. Adams left the State in February, 1836, and was insolvent at that time. He was examined by commission. Among other things he says that, in the partition of his father’s estate, no land was allotted to the complainant; that the witness acted' as her guardian *ad litem,*in the proceedings; “ that a sum of money was ordered to be paid to her in *lieu*of the land ; does not recollect what her portion came to ; it was to have been paid by witness; does not recollect how much was paid; it has all been paid except about eight hundred dollars,” &c. The complainants reside in Richmond county, North Carolina. Failing to recover under the suit *163instituted .in September, 1847, from tbe surety of the administrator, the sum due for her share of her father’s real estate, this bill was filed on the 14th September, 1850. The principal prayer is for partition, complainants ayorring that none was made. But they also charge that, if partition was made, they received no land, and have received no compensation in lieu thereof, and they pray for general relief. The Court is of opinion that the circumstances proved, as well as the admissions of the debtor, fully rebut the presumption arising from the lapse of twenty years. In 1834, eight years after the entry of the judgment, and less than sixteen years before this bill was filed, the debtor admitted the existence of his indebtedness, and the ordinary decreed a sum to be due by him, including the sum due for the complainant’s share of the real estate. There is no proof that Dr. Malloy was the guardian of the complainant, although he assumed to act as such. But still less is there proof of any payment to him of this sum; and up to the time of his examination the debtor admits about eight hundred dollars to have been unpaid when he left the State, insolvent, in 1836, and that he has not since paid any thing on account of it. If this were a proceeding to recover from William L. Adams the amount due on the judgment, it would seem very clear that the presumption of payment, arising from the lapse of time, is fully rebutted, and the lien being coexistent with the debt, this would be conclusive on the defendant, unless, as he submits, he is protected by an adverse possession of ten years. In 1833 he purchased the land at sheriff’s sales, under an execution against William L. Adams ; and he insists, on the authority of *McRaa*vs. *Smith,*2 Bay, 343, that he is entitled to protection by a possession of ten years after the marriage of the complainant. In *McRaa*vs. Smith, the defendant was a purchaser from the defendant in the judgment, and his possession was held to be adverse to all the world, except as the Court say, where there are infants, femes covert or persons beyond the seas. The lien on which the complainants here insist, is a statutory mortgage of which the purchaser would have notice in examining *164bis title. In *Thayer*vs. Cramer, 1 McC. Ch. 395, it was hold that the mortgagor of real estate was a trustee for the mortgagee, and that the purchaser from him was in no better situation, the mortgage being recorded, and could not avail himself of the statute of limitations. I should hesitate to apply the doctrine of *McRaa*vs. *Smith*to the case of a purchaser from the mortgagee with notice of the mortgage. But it is unnecessary to express any opinion upon such case. The statute expressly saves the rights of infants. In 1833, when the defendant purchased, Caroline E. Adams was an infant mortgagee, about nine years of age, and did not attain majority until October, 1845, less than five years before filing the bill. It is said, however, that, in the meantime, to wit, at some period between 1838 and 1841, she had become a married woman, and that, from this time, the possession of the defendant was adverse. Without discussing this point it is only necessary to say that, in September, 1840, ten years before the bill filed, the complainant was not sixteen years of age, and there is no proof that she was then married.

This Court is of opinion that the complainants have a valid subsisting lien on the land set off to William L. Adams by the judgment in partition and subsequently purchased by the defendant, Joshua Fletcher.

It is therefore ordered and decreed, that it be referred to the commissioner for Marlborough District to ascertain and report the amount due to the complainants, calculating interest from the rendition of the judgment in partition, and that the same bo paid out of the proceeds of the land in the possession of the defendant, Joshua Fletcher, upon confirmation of the said report, and that the costs, other than those of the defendants, Bethea and Easterling, be paid by the defendant, Joshua Fletcher.

It is finally ordered and decreed, that so much of the Chancellor’s decree as dismisses the bill in relation to the defendants, Bethea and Easterling, be affirmed; in other respects the same is reformed as is herein before declared.

JoiinstoN, DargaN and Wardlaw, CC., concurred.

*Decree modified.*