Elliott v. Williamson. suit would have been pro tanto an eviction within the covenant of warranty of the defendant's intestate. But as the payment was made without any previous notice to the defendant, the burden is upon the complainant to show that the tax was a valid, subsisting lien upon the land at the time of its payment. For the right of recovery is dependent upon the fact. The defenses relied on are the statute of limitations, and payment. The defense of payment is sought to be made out, not by direct proof, but by lapse of time and other cir cumstances. By a well known rule of the common law time does not run against the sovereign or government. And therefore it has been almost uniformly held by the courts that the ordinary statutes of limitation, which only bear the remedy, do not bind the State: Singleton v. Ake, 3 Hum., 626. The rule is founded on the principle of public policy that the property and rights vested in the government for, the benefit of the whole community should not be dependent upon the negligence or bad faith of the agents or officers to whom the conduct of public business must necessarily be entrusted: Swan v. Mayor and Aldermen of Knoxville, 11 Hum., 130. Lapse of time alone cannot, therefore, impair a public right or extinguish a public debt by raising a conclusive presumption of grant or payment, when it is made clearly to appear that no grant or payment was ever in fact made: People v. Supervisors of Columbia County, 10 Wend,, 363; United States v. Williams, 4 McLean, 567. For neither lapse of time nor the laches of public officials can prevent Elliott v. Williamson. the State from asserting a right or obligation, admitted or clearly established. The authorities are hopelessly in conflict whether this prerogative of government extends to municipal corporations considered as branches of the government. The weight of reason, and perhaps of authority, is to concede the exemption to such corporations as to all matters in which they stand in the place of the State for public purposes: Sims v. Chattanooga, 2 Lea, 694. And it has accordingly been held that taxes assessed by a municipal corporation for the public benefit stand like the taxes assessed by the State: City of Memphis v. Looney, 9 Baxt., 130; State ex. rel. v. Butler, MS. opinion of this court at April term, 1882. The general statute of limitations was, therefore, no bar to the enforcement by the city or its receiver of taxes in controversy, nor would the lapse of time or laches of the city officials prevent a recovery of the tax if elearly shown to be properly assessed, unpaid, and a valid lien on the property on which it was levied. But these principles are entirely consistent with the rule, equally well established, that although lapse of time does not, of itself, furnish a conclusive legal bar to the demand of the sovereign or State, yet, if the demand might have been paid, or the adverse claim might have had a legal commencement, such payment or commencement may be presumed after many years of uninterrupted, adverse possession or enjoyment. The presumption in such case, subject to rebuttal, is one of fact to be deduced from the entire evidence and circumstances according to the common and received Elliott v. Williamson. tests of truth. Presumption of fact, says Mr. Greenleaf, "differs from presumptions of law in this essential respect, that while those are reduced to fixed rules, and constitute a branch of the particular system of jurisprudence to which they belong, these merely natural presumptions are derived wholly or directly from the circumstances of the particular case, by means of the common experience of mankind, without the aid or control of any rules of law whatever": 1 Gr. Ev., secs. 44 and 45. Accordingly royal grants in England have been found after an indefinitely long entertained, peaceable enjoyment, accompanied by the usual acts of ownership: Rex v. Brown, cited Cowp., 110; Mayor, etc., v. Horner, Cowp., 102. "For," to borrow the language of Coke's reports, "tempus est edax verum, and records, and letters of patent, and other writings either consume or are lost or embezzled, and God forbid that ancient grants and acts should be drawn in question, although they cannot be shown, which at first were necessary to the perfection of the thing": Bedle v. Beard, 12 Rep., 5. This court from an early day has given effect to such presumptions. Prescription and presumption," says Overton, J., in the leading case on the subject, "must be resorted to for the peace, order and happiness of society": Gwathrey v. Stump, 2 Tenn., 308. "Indulgent to the weakness of our nature," says Crabb, J., "as a matter of public policy, to promote the repose of society, and to put down litigation, courts intend the existence of facts when it is unreasonable to expect evidence of them": Hanes v. Peck, M. & Y., 228, 237. A grant from the State Elliott v. Williamson. will therefore be presumed from the peaceable enjoyment and uninterrupted possession of twenty or more years. "The rule," says Totten, J., "is not founded merely on policy and convenience; but it is a presumption of fact, reasonably to be inferred from long and undisturbed possession and enjoyment, that the claimant had a legal and valid title at the commencement, which, from lapse of time and accident, he may not be able to adduce. In such case a grant, or other proper evidence of title will be presumed, but this presumption may be repelled by proof of other facts": Brock v. Burchett, 2 Swan, 27. In like manner, at common law every debt evidenced by specialty or judgment was presumed to be paid after the lapse of twenty years: Freeman on Judgments, sec. 464. By early judicial legislation in this State, the period of time required to raise this presumption was reduced to sixteen years: Blackburn v. Squib, Peck, 64. The presumption is not conclusive, but merely throws upon the party seeking to enforce his debt after the lapse of the prescribed period of inaction, the burden of proving that the debt is unpaid: Stanley v. Kinzer, 7 Lea, 454; Thompson v. Thompson, 2 Head, 405. Independent of this arbitrary presumption from the lapse of a fixed period of time, the lapse of an indefinite period, though less than the full term of presumption, is a proper circumstance for the consideration of the jury, and may, in connection with other circumstances, authorize the presumption of payment as a fact: Freeman on Judgments, sec. 465. Eight years with circumstances have been held sufficient Elliott v. Williamson. to go to a jury in one case, and thirteen years in another: Leiper v. Erwin, 4 Yer., 97; Husky v. Maples, 2 Cold., 25. Men cannot be required to preserve through life the acquitances which prove the payment of debts. No reason occurs why the State or municipal corporations, any more than individuals, should be exempt from the presumption of fact arising from lapse of time, which merely shifts the burden of proof. The State is bound by the acts of its officers like natural persons: State v. Hamilton, 11 Hum., 47; State v. Crutcher, 2 Swan, 515. And the State and, fortiori, municipal corporations must conform to, and be governed by the rules of evidence and practice of the courts in suits between individuals. Taxes cannot have any higher character or immunity than debts due by judgment. The assessment is in the nature of a judgment, and the warrant for the collection operated like an execution: Hopkinson v. Springfield, 12 N. H., 328. The claim of the city in the case before us may be resolved into the debt evidenced by the tax, and the lien on the land given by the statute. The only evidence introduced in support of the claim is the assessment on the tax books for the year 1857, and that there is nothing in the book to show satisfaction or payment. But it is also shown that the city in 1858 sold the lot in satisfaction in for the amount due. have been an entry of satisfaction on the tax book, and the fact, which is conceded, unexplained is an end of the claim for the debt. And no explanation is offered. In this view, conceding the validity of the of the tax, and bought it Prima facie there ought to |