Samuel Freeman Miller

“ It may admit of doubt whether in the mere absence of any such allegation the court will raise the presumption of payment on which the equitable defence is founded. Without deciding this, we think there is another ground on which defendants must be put to their answer, and in that answer they can plead or rely on the statute, or the lapse of time coupled with an averment that the judgments are no longer alive.
That matter concerns the Sligo property. No bill for specific performance could have been brought against Carroll or his devisees before the partition required by the agreement was made. ”

“ Among other things completed at the time was the payment of part of his debt, the release of certain real estate from the lien of the complainants' judgments, and his transfer of judgments held by him against other persons to the trustees, with an understanding that all moneys thereafter collected on them should be credited on the judgment of the bank against him. Certain property known as the Sligo estate, in which he had an undivided interest, was by him to be conveyed to the bank as soon as he could procure a partition with the other part-owners. ”

“ In 1872, as soon as they learned that the partition had been made, the trustees attempted to assert their rights by an effort to revive the old chancery proceeding out of which the agreement arose. Being defeated in this, they commenced the present suit in March, 1876. We think that on the face of the bill they are not barred by lapse of time. If there are other matters not shown in the bill which would make that a bar, no injury can accrue by requiring them to be shown by way of answer or plea. ”