Everett v. Lockwood

Headnote

Payment of installments under contrast — in action of ejectment brought for non-payment — burden of proof as to payments.

■ Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.

The action was ejectment, brought by the plaintiff as heir at law of Richard Everett, deceased, to recover the possession of certain premises which the defendant occupied under a written contract of purchase from the deceased. The complaint set up the contract, possession under it and a failure to pay installments. The answer admitted the contract and possession, averred payment of an installment, and full payment of all that was due on the contract at the time of commencing the action. The principal question presented by the appeal was, whether it was incumbent upon the plaintiff to prove that the payments had not been made, or upon the defendant to show that they had.

The court at General Term say: “ Under these pleadings, the averment of payment was an affirmative allegation on the part of the defendant; and, like other averments of payment, it should be proved by the party who alleges it. The only issue on the pleadings appears to be the issue of payment on the contract. And on pleadings thus framed we think that it was for the defendant to prove the payment which he had averred.”