¶1Dissenting Opinion by
¶2The promissory notes in this case are dated October 8, 1929, and judgments thereon were not entered until July 30,1931. This means that nothing was done to effectuate payment-until 21 years and 7 months after the date of the notes and 19 years and 2% months after the entry of judgment. This fact in itself, when suit on the notes is resisted, should be enough to prevent summary execution.
¶3The dust of time and the cobwebs of delay work against the presumption of survival of a debt.
¶4The defendant, Mary A. Russell, avers that the notes were paid to Alice A. Brooks prior to January 23, 1934, and declares further that by reason of the lapse of time a presumption of payment has arisen which it is the obligation of the plaintiff to disprove.
¶5I believe that with these averments the defendant is entitled to a jury trial. In Peabody v. Carr, 316 Pa. 413, 416, this Court said: “ ‘Doubtful cases should go to trial, especially those involving intricate relations demanding inquiry into the facts of the controversy.’ ” In Diamond v. Tobias, 12 Pa. 312, this Court said: “The rule is well established, that, where the period is short of twenty years, the presumption of payment must be aided by other circumstances beside the mere lapse of time. But exactly, what these circumstances may be, never has been, and.never will be, defined by the *27law. There must be some circumstances; and where there are any, it is safe to leave them to the jury.”
¶6In Hummel v. Lilly, 188 Pa. 463, the Court affirmed the proposition that after a lapse of twenty years mortgages, judgments and all evidences of debt are presumed to be paid, but added that “in less than twenty years, with circumstances, payment may be presumed.” The Court said further in that decision: “In Hess v. Frankenfield, 106 Pa. 440, the proceeding was, as in this case, a scire facias on a judgment to revive and continue the lien. The judgment had remained unpaid for nineteen years when the scire facias was issued. We held that a period of nineteen years, accompanied with proof of circumstances tending to show payment, was sufficient to raise the presumption of payment, and that the question of payment was for the jury” (Italics supplied )
¶7In the light of all the decisions on this subject I am firmly of the opinion that for at least three reasons— (1) the relationship of the parties, in one case mother and daughter, and in the other, father and daughter; (2) the failure to make demand for payment; and (3) failure to take any legal action, — a presumption of payment certainly came into being after the lapse of the no inconsiderable period of nineteen years, two and one-half months.
¶8And then there must be added to this the definite averment by the defendant that the debt was actually paid.
¶9Presumptions are not mathematical; they are pragmatic and practical. Being, therefore, something less than technically precise, there is no stone wall which must be surmounted in order to arrive within the realm of the presumption. The twilight zone between non-presumption and presumption is like the time period between dusk and darkness. One scarcely knows where one ends and the other begins. It does not accord, *28therefore, with intellectual integrity to say, in the absence of concrete evidence on the disputed issue, that up to twenty years we must accept as adamantine fact the proposition that no payment was made, and then say, at the stroke of midnight just before the beginning of the twenty-first year, the debt becomes paid.
¶10The whole subject of presumption is one of convenience and practicality. Common sense and fairness therefore command the lifting of the curtain of time for the purpose of ascertaining whether the circumstances do not convince a reasonable mind that the payment can be presumed to have been made even a few hours before the portentous tolling of the bell of twenty years.
¶11I dissent.