#### Seth Jenkins *versus*Moses Hopkins.

Accord and satisfaction is a good plea to an action for a breach of a covenant against incumbrances on land; and the lapse of twenty years after actual damage suffered from the breach, furnishes a presumption, which, if not rebutted, will sustain the plea.

This was an action of covenant broken, upon a deed of bargain and sale, dated March 10th, 1799, from the defendant to the plaintiff, of a parcel of land in the county of Ontario, in New York.

The declaration avers a breach of the covenants of seisin, warranty, and freedom from incumbrances, and specially sets forth, that one M‘Kinstry, from whom the defendant derived *553ms title, had previously, in 1786, suffered a judgment against him in New York in favor of one Herrick, which constituted a lien on the land, and that in 1801 the lien was enforced by sale of the land on execution to one Dean.

The defendant pleaded, 1. that the covenants had not been broken, and 2. that in 1802 he paid the plaintiff $ 472, in full satisfaction and discharge of the alleged breaches, and that the plaintiff received that sum in full satisfaction and discharge of all claims upon the defendant by reason of any breaches that had before that time accrued. Issue was joined on both pleas.

At the trial, in May 1829, there was no evidence that Dean entered upon the land under his deed, but in 1807 he conveyed the land to one Williams, and there was evidence of an entry and possession by persons claiming title under Williams. The defendant contended that he might avail himself, upon his plea of accord and satisfaction, of the presumption arising from' lapse of time, in answer to the plaintiff’s claim upon the ouster by Dean, it having been more than twenty years before the action was brought.

The Court formerly determined that the covenant against incumbrances was broken, (8 Pick. 351,) but the question above stated escaped their attention.

*Whiting*and *C. A.*Dewey, now insisted, that the defendant

was entitled to submit the case to the jury on the presumption arising from the lapse of more than twenty years, of a discharge of the breach of the covenant against incumbrances. Accord and satisfaction is a proper plea, in an action on such a covenant. *Blake's case,*6 Co. 44 ; 2 Stark. Ev. 25. He cited, as to the effect of the lapse of twenty years on a bond for the payment of money, *Rex*v. *Stephens,*1 Burr. 434 : *Winchelsea Causes, 4*Burr. 1963 ; *Searle*v. *Barrington,*2 Str. 826 ; *Oswold*v. *Legh,*1 T. R. 270 ; *Hull*v. *Horner,*Cowp. 109 ; 1 Phil. Ev. (Boston ed.) 114 ; *Clark*v. *Hopkins,*7 Johns. R. 556 ;—on a bond for the conveyance of land, *Lynde*v. *Denison,*3 Connect. R. 387 ; — on a mortgage, *Jackson*v. *Pratt,*10 Johns. R. 381 ; *Collins*v. *Torry,*7 Johns. R. 283 ; *Inches*v. *Leonard,*12 Mass. R. 379 ; *Jackson*v. *Wood,*12 Johns. R. 242 ; — on rent reserved by lease, *Bailey*v. *Jackson,*16 Johns. R. 210 ; — on easements, *554*2*Wms’s Saund. 175, note *2*; — in a court of equity, 3 Powell on M°rtg* (Rand’s ed.) 1153 *b ; Jones*v. Turberville, *2*Ves. jun. 12 ; *Pickering*v. *Stamford,*ibid. 280. He also referred to *Read*v. *Brookman,*3 T. R. 158 ; *Roe*v. *Ireland,*11 East, 284 ; *Hillary*v. *Waller,*12 Ves. 264 ; *Giles*v. *Baremore,*5 Johns. Ch. R. 545 ; *Eldridge*v. *Knott,*Cowp. 215 ; *Sumner*v. *Child,*2 Connect. R. 616 ; *Coolidge*v. *Learned,*8 Pick. 504.

*Dwight*and *Hubbard, contra,*

denied that accord and satisfaction are to be presumed from the lapse of time ; and they said their position was fortified by the circumstance, that a plea of payment for a breach of a covenent other than for the payment of money, would be untechnical. 1 Chit. Pl. 480.

*Per Curiam.*

The defendant contends that the breach of the covenant in question was discharged by lapse of time, and that this may be given in evidence under the proper plea ; and the Court think the lapse of time is fit for the consideration of the jury. In all personal contracts for the breach of which damages are to be recovered, lapse of time affords in law a presumption of payment or satisfaction. It does not constitute a legal bar; and it may be encountered by proof tending to rebut the presumption arising from it; but if not rebutted, the jury would be instructed that it offered very strong, perhaps conclusive evidence of satisfaction. And this is founded on good reason, for it cannot be believed that a party who has sustained damage by the loss of his land, and who has a good remedy over upon his covenants, would lie by for a long series of years, without making any claim for indemnity. The presumption therefore is, that such claim has been made and satisfied, in some mode, which, on account of lapse of time and loss of evidence, cannot now be proved by other evidence. It was necessary to fix on some period as a foundation for the presumption, and twenty years have been assumed for that purpose, from analogy to positive law in other cases.1 As this rule has now been long practised on,, the original presumption, arising from the common motives of action, is much strengthened by the presumption, that men commonly act in conformity *555to the known and practically settled rules of law. It is true that most of the cases cited, in which the doctrine of presumption of payment from lapse of time has been discussed, have arisen upon contracts for the payment of money. But, as it regards this presumption of law, we see no difference between a claim for damages for the non-performance of a collateral act, and a bond, for the payment of money. The liability for damages is not technically a debt, and so a plea of payment would not be proper; but the presumption is just as strong, of a payment for the damages or of the performance of some collateral thing in satisfaction, as of the payment of a debt upon the original contract to pay money. There must be a new trial, and the plaintiff will have an opportunity to rebut the presumption by such evidence as he may be able to produce.

Accord and satisfaction is the proper plea. The case of *Giles*v. Baremore, 5 Johns. Ch. R. 545, is strong to show that no technical payment need be presumed.

It is objected that there is no precise time at which the twenty years shall begin. But we think there is no difficulty on that point. The breach was immediate upon the execution of the deed, and an action might then have been maintained ;2 but only nominal damages could be recovered, until the judgment creditor’s lien should be perfected or extinguished. When either of these things is done, the covenantee is substantially deprived of the use and benefit of his estate ; it is at that time that he sustains the real damage ; and that is therefore the time at which the law presumes that he would seek his indemnity. Consequently, that is the point of time from which the term of twenty years is to be computed. Here the lien was enforced in 1801, and the lapse of time would begin from that period.

*New trial granted.*

1

See Revised Stat *c.*120, § 7.

2

**See *Potter*v. *Taylor, 6*Vermont R. 676; *Richardson*v. *Dorr,*5 Vermont R. 9; *Garrison*v. *Sanford, 7*Halsted, 261; *Tufts*v. *Adams,*8 Pick. 547 j *Stewart*v. Drake, 4 Halsted, 139.