
    EVIDENCE — PROOF OF ATTESTED INSTRUMENTS.
    [Cuyahoga (8th) Circuit Court,
    December 22, 1905.]
    Marvin, Winch and Henry, JJ.
    Anna Brunner et al. v. Edward S. Ison et al.
    Evidence — Wishing not Admitted unless Execution be Proved.
    A paper writing, executed some forty years previously, will not be admitted as evidence where the parties whose signatures purport to be appended thereto are dead, unless proof of the execution thereof be offered, or unless it be shown from whose custody the writing came and such other facts as establish a presumption of its authenticity
    [Syllabus approved by the court.]
    Error to Cuyahoga common pleas court.
    E. Sowers, for plaintiffs in error.
    Brewer, Cook &, McGowan, Squire, Sanders & Dempsey, J. A. Tenner and E. K. Wilcox, for defendants in error.
   MARVIN, J.

The petition filed in the court of common pleas alleges that on October 25, 1864, John Leopold was a widower, the father of four children, and Fredericka Kreunberger was a widow, the mother of four children; that these two parties, expecting to become husband ■and wife, entered into a written contract on said day in relation to certain real estate in Cuyahoga county, Ohio, then owned by the said Leopold. This writing is designated in the petition as a deed of trust. By this writing certain provision was made for the said two parties and for the children of each then living, and for any children who might be born to them in the marriage which was to take place between them. The said John and Fredericka are both dead. The plaintiffs are children and descendants of children of said John. Two of the defendants are also children of said John, who refused to join as plaintiffs and are, therefore, made defendants. The other defendants are in possession and claim to own certain real estate described in the petition, which is a part of that contracted about in the writing already mentioned. The plaintiffs aver that they and the defendants, Amelia Berchtold and Fredericka Mathews, are the owners and entitled to-the possession of said real estate, .and that the other defendants unlawfully keep them out of the possession thereof. The prayer of the petition is for an order of the court decreeing the possession to the plaintiffs and said Amelia Berchtolder and Fredericka Mathews, and that the other defendants may be required to account for rents and profits of said premises while the same have been in their possession.

The defendant, Foote, answers, alleging that he is in possession of said premises and is the owner of the same in fee; that the defendant, Ison, at one time was in possession with him and jointly with him owned said premises. He admits that the premises were formerly owned by said John Leopold, and avers that he is the owner thereof by virtue of the conveyance thereof by said John Leopold and through certain mesne conveyances to himself.

The plaintiffs reply, averring that the conveyance made by John Leopold, upon which the defendant relies, conveyed only an estate for and during the life of the said John Leopold, because of the limitations put upon his title by virtue of the contract or deed of trust of October 25, 1864, hereinbefore mentioned.

Whatever title or right the plaintiffs have in these premises depends upon said instrument. They claim under it. That is, the writing of October 25, 1864.

A bill of exceptions containing the proceedings on the trial in the court of common pleas is filed here, and it is claimed there is error manifest in this record.

From this bill, it appears that the plaintiffs proved the marriage of said John Leopold and Fredericka Kruenberger; that each had four' children at the time of the marriage, as stated in the petition; that no children were born of said marriage; that both are dead, and that the plaintiffs are descended from said John, as stated in the petition; and then the plaintiffs offered a certain paper writing, a copy of which is attached to, and made a part, of, of the bill. To the admission of this writing, the defendants objected, and such objection was sustained. Exception to this ruling was taken by the plaintiffs. No further evidence was offered, and the court thereupon gave judgment for the defendant, Foote.

It is this ruling upon the introduction of the writing that is complained of. The briefs and the oral argument of counsel on each side deal chiefly with the construction to be given and the legal effect of the writing offered, and show extensive research by all of them upon some very interesting questions, only one of which, as we view the case, need be considered by the court

The instrument offered bears date, October 25, 1864, and has attached to it, where signatures would properly appear upon a contract, the names, “J. Leopold, F. Kreunberger, Heinr Reussman.” On the left hand at the end of the writing where the names of witnesses would properiy appear and under tbe words “In presence of” appear tbe mames, “G. F. Roll, E. Hessenmueller. ” Tbe provisions of tbe writing offered are sueb as tbe petition sets out are contained in tbe writing or deed of trust entered into between Jobn Leopold and Fredericka Ereunberger, October 25, 1864.

Tbe execution of sucb a writing is denied by tbe answer.

No evidence was offered tending to show that tbe writing was ever signed by these parties whose names appear at tbe foot of it. Surely, it is not sufficient, to entitle a writing to be admitted in evidence, that ■a certain name appears upon it where the name of one whose writing it purports to be, would properly appear. As well might one offer in evidence a writing in tbe form of a promissory note with a name at the end of it, as against sucb man without showing who signed tbe note, or a letter with tbe name of John Doe at the end of it, as tbe letter of John Doe without showing that it was bis genuine signature. There is no question, so far as tbe matter now under consideration is •concerned, as to whether tbe instrument offered is one authorized by law to be recorded and therefore provable by the record, because no record was offered. All that was offered was this writing.

Revised Statutes 6577 (Lan. 10159) provides that in actions before a justice of the peace, it shall not be necessary to prove the execution of a written instrument, unless the party to be charged shall make and file with the justice of the peace an affidavit that such instrument was not-made, etc. The reason for this is' obvious. The .cause is to be tried without verified pleadings, and the party relying on the writing should not be put to the expense of proving its execution unless the party sought to be charged under it is willing to deny its execution under oath. Such is not the ease here. The defendant, by his answer, in this ease, has denied under oath the execution of the instrument on which the plaintiff relied, and the statute itself shows the policy of the law except for the statute, to require proof of the execution of the instrument before it can be admitted.

1 Greenleaf, Evidence Sec. 55, states the rule in these words: “In general all private writings produced in evidence must be proved to be genuine,” and then follows a discussion of how such proof should be made. Here, no attempt whatever was made to show that the writing was genuine

In Garrett v. Hanshue, 53 Ohio St. 482 [42 N. E. Rep. 256; 35 L. R. A. 321], it is held that the old rule requiring the writing to be proved by the subscribing witnesses is not in force but that the proof must be made by some competent person before the writing can be admitted in evidence.

It is suggested that this might have been properly admitted as art ancient document. There is nothing before us to indicate that it should be so treated. True, it bears date forty years earlier than the time at which it was offered, but we know nothing of its appearance or the custody in which it has been or from which it was taken.

The rule as to the admission of ancient instruments is thus stated in Abbott, Trial Evidence 708:

“An ancient deed or will, or other instrument of title, may be admitted in evidence without direct proof of execution, when ■ shown to have come from proper custody, and appearing to be of the age of at least thirty years * # * if such account of it be given as may reasonably be expected under all the circumstances of the case, and as affords a presumption that it is genuine.”

None of these requisites were shown here. It is urged that the reason given by the court shows that- the exclusion was upon other-grounds than those stated in this opinion. If that were true, it would not justify a reversal, if there existed any lawful ground for such exclusion. The reason stated, however, in the bill of exceptions is entirely consistent with what has been said.. The language of the bilL is:

“And the court thereupon sustained the objection and refused to admit said paper writing in evidence and excluded the same on the ground that the same did not tend to show a legal title in the plaintiffs to the land in question.”

Surely, if as we have reasoned, under the law, it did not of itself tend to show anything except that it was a written paper, the ground stated by the court was entirely proper.

As the plaintiffs could not succeed without establishing the contract set out in the petition, and as there was no evidence tending to show such contract, the judgment for the defendant necessarily followed, and the. same is affirmed. •

Winch and Henry, JJ„ concur.  