Roach v. Cox

• Decision Date: 20 May 1909
• Parties: ROACH v. COX.
• Court: Alabama Supreme Court

49 So. 578

160 Ala. 425

ROACH v. COX.

Supreme Court of Alabama

May 20, 1909

Apeal from Circuit Court, Jackson County; W. W. Haralson, Judge.

Action by L. R. Roach against G. R. Cox. Judgment for defendant plaintiff appeals. Affirmed.

Bilbro & Moody, for appellant.

John B Talley, for appellee.

McCLELLAN J.

Roach sued Cox to recover a sum of money paid April 1, 1873, by Roach as surety for Cox on a note payable to one Cross. It is averred in the complaint that on January 1, 1880, Cox paid Roach $25 in reimbursement, in part, of the sum so previously paid by Roach. The defendant pleaded the period of upwards of 20 years, elapsing since the described payment, as a bar to a recovery in the premises. Plaintiff replied, by replication 1, that the debt sued on was contracted in Alabama, and that the defendant had been absent from Alabama during the period within which suit might have been brought against him, and plaintiff was at the time the debt was contracted and has been ever since a bona fide resident of Alabama; by replication 2, that plaintiff did not know in what state defendant was living, that he was absent from Alabama as averred in replication 1, and during this period plaintiff knew of no property of the defendant subject to seizure in satisfaction of his demand; and by replication 3, that plaintiff's debt was contracted in this state and that plaintiff has been and is now a bona fide resident thereof. An averment common to all of the replications is that the debt sued for has not been paid. The demurrers to those replications take the points (1) that the matters set up therein did not avoid the effect of the presumption pleaded and (2) that the presumption is conclusive after the lapse of such period, if there was inaction on the part of the creditor and no recognition of the obligation by the debtor within the period.

Notwithstanding the rulings in McArthur v. Carrie, 32 Ala. 75, 95 70 Am. Dec. 529 and Harrison v. Heflin, 54 Ala. 552 to the effect that such presumption is not conclusive, nor, on the other hand, a mere circumstance for the jury's consideration to determine whether they will apply the presumption in a given case, but that it is prima facie evidence of payment, extinguishment, affecting to cast the burden on the debtor, this court seems to have progressed, in several decisions, to the conclusion that, under the conditions defined, the presumption is conclusive, is a positive bar. Semple v. Glenn, 91 Ala. 245, 261, 6 So. 46, 9 So. 265, 24 Am. St. Rep. 894. In this decision language at war with the ruling made in the cases in 32 and 54 Ala. repeatedly occurs. The natural effect of these expressions cannot be minimized or qualified by reference to the point inviting the discussion; for they were written in comprehensive review of the principle involved. It is true the opinion takes, as we understand it, an erroneous view of the breadth of the holding in McArthur v. Carrie; but this fact rather emphasizes the bent of the court in the views announced. In Black v. Pratt Co., 85 Ala. 504, 511, 5 So. 89, 94, written by Stone, C.J., from whose pen we have the McArthur Case, it is said: "There is, however, a presumption that any and all claims or rights of property, which have been permitted to slumber without assertion or recognition for 20 years, have no legal existence, or have been adjusted; and from the 20 years necessary to raise this presumption the 4 years, 8 months, and 10 days allowed on account of the war is not deducted. There is no suspension in the current time required to perfect this presumption." In Jefferson v. Pettus, 132 Ala. 671, 674, 32 So. 663, Black v. Pratt Co. is approvingly quoted in...