Morse v. National Central Bank of Baltimore

• Decision Date: 09 March 1926
• Docket Number: 105.
• Parties: MORSE v. NATIONAL CENTRAL BANK OF BALTIMORE.
• Court: Maryland Court of Appeals

132 A. 598

150 Md. 142

MORSE v. NATIONAL CENTRAL BANK OF BALTIMORE.

No. 105.

Court of Appeals of Maryland

March 9, 1926

Appeal from Superior Court of Baltimore City; Eli Frank, Judge.

"To be officially reported."

Suit by Mary E. Morse, administratrix of the estate of Maria Dittmar deceased, against the National Central Bank of Baltimore. From a judgment for defendant, plaintiff appeals. Affirmed.

Argued before BOND, C.J., and PATTISON, ADKINS, OFFUTT, DIGGES, and WALSH, JJ.

George Ross Veazey, of Baltimore (Lloyd L. Jackson, Jr., of Baltimore, on the brief), for appellant.

Joseph France and Harry N. Baetjer, both of Baltimore (Venable Baetjer & Howard, of Baltimore, on the brief), for appellee.

PATTISON J.

Maria Dittmar, on the 24th day of January, 1873, deposited with the German Savings Bank of Baltimore City the sum of $2,825.50 and received from the bank a deposit book therefor No. 5755. On the 5th day of May of the same year she made a further deposit of $100, and on July 30th she withdrew from the bank the sum of $27.75. The two deposits, as well as the withdrawal, were entered on the book given to her.

On May 5, 1873, the same day upon which she made the deposit of the $100 above mentioned, Mrs. Dittmar deposited with said bank $400, and received from it a deposit book No. 6117, in which the deposit of $400 was entered.

About a week prior to the death of Mrs. Dittmar, which occurred on November 26, 1922, at the age of 90 years, while she was ill and at the time unconscious, her grandson, Wm. A. Codd, went to her home, and took from her locked bureau drawer, without her knowledge and direction, certain articles belonging to her, consisting of jewelry, fire insurance papers, deed for cemetery lot, savings account books, and check book in the Drovers' & Mechanics' Bank, the two deposit books of the German Savings Bank above mentioned, and a savings account book of Herman Dittmar, the husband of Maria Dittmar in the German Savings Bank, though Herman Dittmar had died 48 years prior to such time.

Codd, it seems, had to some extent looked after the business affairs of Mrs. Dittmar after she became unable to do so, and, upon her direction, had drawn money both from the Savings Bank of Baltimore and the Eutaw Savings Bank for her support and maintenance, as well as to pay taxes and expenses upon her property. He knew that she kept her valuables in the drawer mentioned, but he did not know of the existence of the deposit books of the German Savings Bank, as he had never seen them, nor had he ever heard his grandmother mention them. These things were all removed from the drawer, as he says, to keep them from being scattered, and were, after the death of his grandmother, given to his aunt, Mrs. Mary E. Morse, the appellant, who lived with her mother, Mrs. Dittmar, and who became administratrix of her mother.

The record discloses that these deposit books of the German Savings Bank were first given to one George Loden, the son-in-law of Mrs. Morse, and her first legal advisor in the settlement of her mother's estate. The books were in his possession at the time of his death, which occurred in September, 1923, when they were returned to Mrs. Morse, and she, in the same month, presented them to the National Central Bank, the successor of the German Savings Bank, and demanded payment of the amount claimed by her upon them. Payment was refused upon the ground that there was nothing owing thereon, and suit was thereafter instituted to recover the amount so claimed by the appellant. The case was heard by Judge Frank, sitting without a jury, in the superior court of Baltimore city, and a verdict was rendered by him in favor of the defendant, and upon such verdict a judgment was entered for defendant's costs. It is from that judgment the appeal in this case was taken.

In the trial of the case eight exceptions were taken to the rulings of the court; one upon the prayers and seven to the admission of evidence.

The plaintiff offered one prayer, which was rejected, while the defendant asked for six instructions. Of these, the fourth was granted and the others refused. The court was asked by the plaintiff's prayer to rule as a matter of law that, should it "find that the deposits entered in the two pass books offered in evidence were credited to the account of Maria Dittmar, then the burden of proof is upon the defendant to establish by the preponderance of the evidence that the said funds have been paid out by the defendant upon the authority of the deceased Maria Dittmar, and, if the court sitting as a jury shall find that the defendant has not met this burden of proof, either as to all or to part of the said deposit, then, if the court sitting as a jury further finds that the accounts in question were savings accounts, the verdict of the court sitting as a jury shall be for the plaintiff for the amount of said deposits (less sums which have been shown to have been paid out as aforesaid), plus interest on the deposits at the rate of 5 per cent. per annum, compounded on the 1st day of January and the 1st day of July of each year, to the date of trial."

By the defendant's fourth prayer, which, as we have said, was granted, the court instructed itself, sitting as a jury, that, should it find "that for a period of more than 45 years prior to the date on which demand was made by the plaintiff's intestate for the payment to her of the amounts shown by the two savings bank books offered in evidence, no demand or claim of any kind had been made on the defendant or its predecessors by the plaintiff's intestate or on her behalf, for said sums or any part thereof or any interest thereon, that then it is encumbent on the plaintiff to prove by a preponderance of evidence, and not only by the production of the books themselves, that the amounts shown on said books had not been paid by the defendant."

In passing upon these prayers the court was called on to decide, upon the facts of this case, whether there existed a presumption arising from lapse of time, that the amount once owing to appellant's intestate, by reason of said deposits, had been paid.

It is said in 21 R. C. L. 128:

"In all civilized countries where the law is administered as a science, having reference to the peace, quiet, and progress of society, as well as to the protection of individual rights, it has been thought wise that there should be some limit to litigation, some boundary beyond which contests or matters open to contest should be regarded as settled. Early in the judicial history of England the presumption of payment was raised after a great lapse of time between the creation of an obligation and an attempt to enforce it in the courts. This presumption became a part of the law of the United States, and is applied in all jurisdictions. * * *

The presumption rests, not only on want of diligence in asserting rights, but on the higher ground that it is necessary to suppress frauds, to avoid long dormant claims, which, it has been said, have often more cruelty than justice in them; that it relieves courts from the necessity of adjudicating rights so obscured by the lapse of time and the accidents of life that the attainment of truth and justice is next to impossible. In a word, * * * the most solemn of human obligations lose their binding efficacy, and are presumed to be discharged after many years. Forbearance to enforce a pecuniary claim is not direct evidence that the money has been paid, but on the fact of forbearance the law builds a presumption that a demand has been satisfied, vesting it on the rational ground that a person naturally desires to possess and enjoy his own, and that an unexplained neglect to enforce an alleged right for a long period casts suspicion on the existence of the right itself, because in the ordinary course of human affairs it is not usual for men to allow real and well founded claims to lie dormant a great length of time. * * *

The presumption of payment is conclusive in the sense that where it appears that the requisite time has elapsed and no countervailing evidence is given, neither the court nor the jury is at liberty to find that the debt was not paid; but it is not conclusive in the sense that the plaintiff may not introduce evidence to disprove the fact which by force of law the lapse of time establishes."

Unless made shorter by statute, the lapse of time required to raise the presumption is 20 years, and no such presumption arises merely from a lapse of less time. 30 Cyc. 1274.

The distinction between such a presumption and the statute of limitations is well stated in Reed v. Reed, 46 Pa. 239, where it is said:

"The latter is a prohibition of the action, the former, prima facie, obliterates the debt. The bar is removed by nothing less than a new promise to pay, or an acknowledgment consistent with such a promise. The presumption is rebutted, or, to speak more accurately, does not arise where there is affirmative proof beyond that furnished by the specialty [or the instrument upon which suit is brought] itself, that the debt has not been paid, or where there are circumstances that sufficiently account for the delay of the creditor."

See copious note to Sheafer v. Woodside, 1 A. L. R. 775, upon presumption of payment from lapse of time.

This presumption of payment arising from lapse of time is universally recognized, and its existence is not denied by the appellant, although, upon the facts disclosed by the record, its applicability to this case is disputed by her.

The German Savings Bank was incorporated in 1868, and at that time it entered into and continued business until the incorporation of the German Bank of Baltimore in 1874, when it was succeeded by the last-named bank, which in 1918 was succeeded...