Evidence, Burden of proof. Payment. Practice, Civil, Exceptions. Evidence, Best and secondary.
Where a plaintiff sues under an assignment held by him as security for a judgment, if the defendant relies on a payment of the judgment this is matter of defence which he must allege and prove.
Where a plaintiff, seeking to prove that the defendant's title to certain real estate had been confirmed by a judgment, called the defendant as a witness and the defendant admitted the fact without objection or exception, it was held not to be open to the defendant in this court to raise the point that his title by judgment being a matter of record could not be proved by his oral admission.
LATHROP, J.
The only questions argued before us are the refusal of the judge to give the second and sixth requests for instructions. The assignment was given as collateral security for the payment of a judgment. The gist of the second request is that there was no evidence that the judgment was not paid. A prima facie case having been made out by the plaintiffs, they were entitled to recover, unless the defendant showed that the judgment had been paid. Payment is a matter of defence, and if relied on by the defendant must be alleged and proved. Hilton v. Smith, 5 Gray, 400. Noxon v. De Wolf, 10 Gray, 343, 348. Clark v. Murphy, 164 Mass. 490.
The gist of the sixth request is that a reasonable time had not elapsed in which to pay the money. By the terms of the assignment, the money was to be paid "with all convenient speed" after the title to the property was confirmed, and possession given to the defendant.
We are of opinion that on the evidence there was enough to show that there was a breach of the agreement on the part of the defendant.
At the argument of the case the defendant contended that the confirmation of his title being by a judgment was a matter of record, and that his admission as to his title to the real estate could not be received in place of the record. The answer to this is that no such point was raised in the court below, or exception taken to the admissibility of the evidence of the defendant, who was called as a witness by the plaintiffs.
Exceptions overruled.