
    Jane A. M. Bissell, Administratrix, v. Samuel Jaudon et al., Trustees.
    1. The presumption of the payment of a claim arising at common law, from the lapse of time, may be rebutted by proof that it remains due and unpaid, or by proof that the debtor, within the period required to raise such presumption, acknowledged such claim to be an existing liability.
    ? Where a judgment is rendered in another state, upon a claim secured by a mortgage of the judgment debtor; and where, in a subsequent suit to foreclose the same, within fifteen years from the date of such claim, he consents to a decree ordering the sale of the mortgaged premises, and that the proceeds thereof may be applied to discharge the amount in the decree found to be due on the claim embraced in such judgment; such consent constitutes an “ acknowledgment of an existing liability” upon such judgment, within the meaning of the 5th section of the act of 1831, for the limitation of actions; and an action in this state, on such judgment, will not be barfed under that act, until the expiration of fifteen years from the date of such acknowledgment.
    Error to tbe district court of Lucas county.
    On tbe 2d day of March, 1859, Samuel Jaudon and others, trustees of'the Bank of the United States, filed in the court of common pleas of Lucas county, their petition, setting forth:
    *That, at the court of common pleas of the county of Erie, in the State of Pennsylvania, on the first Monday of November, 1837, a judgment was rendered in favor of the Lumberman’s Bank, against Edward Bissell, for the sum of $32,867.48.
    That the Lumberman’s Bank, being indebted to the Branch Bank of the United States, of Erie, Pennsylvania, on the 6th day of November, 1837, assigned to said Branch Bank of the United States, the sum of $12,357.32 of said judgment, to be collected) with interest on the same from the 4th day of November, 1837, out of said judgment; and also, at the same time, assigned to said branch bank, the mortgage taken by said Lumberman’s Bank of said Bissell, upon certain property in Toledo, Ohio, as collateral security for the payment to said Lumberman’s Bank, of said sum of $32,867.48, to be held by said branch bank until the amount of the judgment, so assigned, should be paid, and then the mortgage was to be reassigned to the Lumberman’s Bank.
    That the Lumberman’s Bank, on the 27th day of October, 1840, filed in the common pleas of Lucas county, Ohio, their bill to foreclose said mortgage, and on the 31st day of March, 1843, filed in said court their amended bill, making Edward Bissell and others parties defendant to the suit.
    That such proceedings were thereupon had, that on the 1st day of April, 1844, a decree was rendered by said court, finding that, on the mortgage, there was due the sum of $45,521.23. That of this sum, there was due to the Branch Bank of the United States, on the judgment, the sum of $17,053.04; and, by consent of parties, ordering that unless the whole sum of $45,521.23 was paid by defendants, within ten days from the rising of the court, the mortgaged premises should be sold, and the proceeds applied to pay: 1. The costs of suit; 2. To discharge the amount so found due to the Branch Bank of the United States; 3. The balance to be paid to the said Lumberman’s Bank.
    That the mortgaged premises were sold, and there was applied to the payment of the Branch Bank of the United States, from the proceeds of the sale, on the 26th day of October, 1844, the sum of $6,673.05.
    *That a balance remained due on said judgment to said branch bank, amounting to the sum of $10,857.73.
    That, except said amount of $6,673.05, so received by the branch bank, “ no other sum, or amount whatever, has ever been paid on said judgment, so assigned, either by said Edward Bissell or any other person.”
    
      Plaintiffs then ask judgment against said Bissell, for $10,857.73, with interest from the 26th of October, 1844.
    Defendant answered that the cause of action in plaintiffs’ petition specified, accrued on the first Monday of November, 1837, more than _fifteen years, and,more than twenty years before the commencement of this suit; and that, by law, suit on said judgment is barred by lapse of time.
    Edward Bissell died, and Jane A. M. Bissell was appointed administratrix of his estate, and entered her appearance in the suit.
    Plaintiffs then demurred to so much of the first branch of defendant’s answer as alleges, “ that the cause of action, in plaintiffs’ petition specified, accrued on the first Monday of November, 1837, more than fifteen years, and more than twenty years before the commencement of this suit.” Plaintiffs, by reply, also denied the allegation contained in the answer, that, by law, suit on said judgment is bai’red by lapse of time.
    The ease was tried upon these issues, and judgment was rendered for the defendant.
    On error, the district court reversed the judgment, and remanded the cause to the court of common pleas for further proceedings.
    This petition in error is prosecuted here, to reverse the judgment of the district óourt, and to affirm'that of the common pleas.
    
      M. JZ. & M. Waite, and Bissell & Qorrill, for plaintiff in error :
    1. Every reasonable intendment must be made to support the decision of the court of common pleas. It must be presumed to have acted on sufficient evidence, in cases where the bill of exceptions does not set forth the evidence. This case came before that court upon the demurrer to our plea of *the statute of limitations, and the other issue raised by our allegation that the suit was barred upon the judgment by the common-law presumption of payment after the lapse of twenty years. The court overruled the demurrer, arid also found the other issue in our favor. The evidence upon which the latter finding is based, is not set forth in the bill of exceptions. We therefore claim that the judgment can not legally be reversed. Vincent v. Goddard’s Lessee, 7 Ohio, 499; Swan’s Stat. of 1841, 553, 554; 1 Parsons on Contr. 7; Ib. 342, 343; 1 Chase’s Stat. 392, 655; Walker’s Am. Law, 428, 432, 433; Headly v. Roby, 6 Ohio, 228; Jacquette v. Huguenon, 2 McLean, 129; Stockwell v. Coleman, 10 Ohio St. 40; Head’s Ex’r v. Manning’s Adm’r, 5 J.J. Marsh. 256; Bell v. Morrison, 1 Peters, 351; Ang. on L., secs. 65, 78, 79 (note h), 90 (p. 211, and authorities there cited), 232, note 9; Williams v. Williams, 5 Ohio, 444; Clementson v. Williams, 8 Cranch, 72; Spring v. Gray, 5 Mason, 523; Ohitty on Contr. (6 ed.) 805.
    2. Plaintiffs had the right to elect either to bring suit upon the indebtedness secured by the mortgage or the judgment. Upon the former cause of action we had a particular defense (usury). In order to prevent our using it, they chose to bring their action upon the judgment. In so doing they exercised a privilege which the law allowed them. We made no complaint because they did so. We investigated the law and discovered that their action upon the judgment was barred by the statute of limitations. Having pleaded •this successfully, they have no right to set up an acknowledgment never made by the defendant, but which they ask the court to infer from proceedings relating to that cause of action which they discarded as the basis of this suit. Hamilton v. Jefferson, 13 Ohio, 427; Belknap v. Gleason, 11 Conn. 160; Bank v. Byrd, 14 Ash. (1 Dark.) 496, cited in 15 U. S. Dig. 390, secs. 32, 32; 1 Western Mon. Law Mag. 251; Ang. on Lim., secs. 92 (note 3), 238, 211, 212, 218, 23, 208, 220, 231 (note 2), 232, chap. 20; Hewet v. Parker, 1 B. & A. 92; 1 Pet. 352, 363, 364; McClung v. Sillman, 3 Pet. 278; Green v. Johnson, 3 Gill & Johns. 394; Gilkyson v. Larue, 6 Watts & Serg. 218; 2 Parsons on Contr. 349; Moore v. Bank of Columbia, 6 Pet. 86 ; *Chitty on Contr. 821, note 1; Aylett’s Ex’r v. Bobinson, 9 Leigh, 45; Bloodgood’s Ex’r v. Bruce, 4 Seld. 362, 373; Story on Contr. 823, note 9; Ten Eyck v. Wing, Mann. (Mich.) 40.
    
      Bouse & Glarlc, for defendants in error: '
    1. As to the defense that more than twenty years had elapsed after the rendition of the judgment in Erie, Pennsylvania, on the first Monday of November, 1837, before the commencement of this suit:
    More than twenty years had elapsed before the commencement of this suit. At common law, a judgment is presumed to have been paid after the lapse of twenty years from its rendition. This, however, is but a presumption, which may be overcome by proof that it has not been paid.
    The petition alleged that of the judgment, with the exception of the sum of $6,673.05, realized from the sale of the mortgaged premises, “no other sum, or amount whatever, has been paid on said judgment so assigned, either by said Edward Bissell or any other person.” This is a material allegation, and is nowhere denied or controverted by the defendant. It then, by the terms of the code (sec. 127), “ shall be taken as true.” Then no proof was called for, and on the pleadings plaintiffs were entitled to judgment, so far as the twenty years’ defense was concerned.
    2. The defense “ that the cause of action accrued more than fifteen years beforewthe commencement of this suit,” rests upon the theory that a judgment is a specialty; that under the act of 1831 all actions founded upon a specialty must be brought within fifteen years after the cause of action accrued, or they are barred by the statute.
    Taking the defendant’s own theory, that a judgment is a specialty, then we say that, even in that case, this cause is not barred by the statute, for the reason that the defendant below, Edward, Bissell, acknowledged (by the decree entered by “ consent of parties ”) the debt as an existing debt, on which this action is founded, on the lsi day of April, 1844, and this action was commenced March 2,1859, within the fifteen years after such acknowledgment. See. 5 of the act of 1831.
    3. -But the judgment on which this action was 'brought is not a *.specialty. Tyler’s Ex’rs v. Winslow, 15 Ohio St. 364; Tod v. Crum, 5 McLean, 172. Stockwell v. Coleman (10 Ohio St. 33) is irreconcilable with Tyler’s Ex’rs v. Winslow, and should go to the wall.
    The conclusion is irresistible, that an action founded on a judgment, whether of Ohio or Pennsylvania, is not an action founded on a specialty. That an action founded on a judgment is not harred by our statute, whether that judgment be rendered in Ohio .or Pennsylvania, and for precisely the same reasons.
    
      M. JR. & JR. Waite, for plaintiff in error, in reply:
    1. The assertion that more than twenty years have elapsed since the rendition of judgment, and defendant relying upon the common-law presumption of payment resulting therefrom as a defense to the action, does “ controvert” said petition, as far as the pleadings are concerned. It then devolved upon the plaintiffs, at the trial, to introduce evidence to defeat this presumption.
    2. With regard to the consent and acknowledgment relied on as taking the case out of the statute, we call attention to the fact that service of subpena in the foreclosure suit was made more than fifteen years before the commencement of this action ; that the record shows no other appearance of defendant; that the bill in chancery made no mention of said judgment; that the Bank of the United States was not a party to said suit; and that the only consent was, that if an indebtedness in existence before this judgment was rendered be not paid, then the mortgaged premises might be sold.
    3. We take it for granted that the case of Stockweli v. Coleman was decided after mature consideration. If that case can not be reconciled with Tyler’s Ex’rs v. Winslow, the latter should be reversed rather than the former. There is no necessity for reversing either of said decisions. The two can stand together, as by the opinion in the latter case seems to have been intended.
    A judgment of the court of Pennsylvania is not a judgment in Ohio, in the sense in which the word is used when applied to the judgments of the courts of our own state.
   *Dat, J.

The defendant in the original action, with other defenses pleaded in his answer, alleged that the cause of action specified in the petition, accrued “ more than fifteen years, and more than twenty years, before the commencement of this suit;” and, in addition thereto, informally, but substantially, demurred to the petition, on the ground that the cause of action therein stated, was barred by lapse of time. The plaintiffs demurred to the first part of this defense, and joined issue upon the latter.

The cause was submitted to the court of common pleas upon the question of law thus raised, and was decided in favor of the defendant. The district court, on proceedings in error, reversed this decision; and we are asked to reverse the judgment of the latter court, and to affirm that of the common pleas.

The substantial question of law submitted to the determination of the courts below, and to this court, is, whether the action, as set forth in the petition, is barred , by lapse of time. The question is the same in every form it is presented by the record. No fact is averred in the answer, relating to this question, that does not appear in the petition. The question of law raised by the defendant, was, therefore, as available to him by demurrer as it was by answer. Sturges v. Burton, 8 Ohio St. 215.

The plaintiffs, by their demurrer and reply to the answer, simply questiozzed its sufficiency in law, as an answer to the case made in their petition; so that, in any aspect of the pleadings, the question is the same, and turns upon the question before stated.

The action was brought upon a judgment rendered in the State of Pennsylvania in November, 1837, and was commenced on the second day of March, 1859, after the lapse of more than twenty years. Now, if this judgment was a specialty, within the meaning' of the statute of limitations in force when it was rendered, an action thereon would undoubtedly be barred, unless it was saved under the provision continuing the right of action, for the statutory period, after part payment or an acknowledgment of liability. The plaintiffs were then compelled, to avoid a demurrer, to state facts in their ^petition, sufficient to bring the case within the saving provisions of the statute. This they attempted to do by alleging facts which, they claim, show that the defendant, within-fifteen years from the date of the claim on which the judgment was rendered, and less than that period before the commencement of this action on the judgment, acknowledged his liability thereon.

These facts, under our present system of pleading, were material to the plaintiff’s case, and, under the pleadings, are conceded to be true. Are they sufficient to save the action brought on the judgment from being barred by lapse of time ?

It is claimed on the part of the plaintiff in error that the action was barred: first, by the common-law presumption of payment, after the lapse of twenty years from the recovery of the judgment; and, secondly, by the statutory limitation of fifteen years.

As to the first proposition, it may be remarked, that, if it be conceded that the common-law presumption of payment, after the lapse of twenty years, may be applied to judgments, it is, at most, but a presumption, and may be rebutted. 2 Parsons on Contr. 341. Upon this point the averment in the petition that the judgment still remains unpaid, was material, and, if not admitted by the informal demurrer in the answer, was not denied in the defense based on lapse of time, and must, therefore, be taken as true. This, it would seem, is a sufficient answer to the claim of the plaintiff in error on this point. But however this may be, this presumption of payment may be rebutted, in analogy to the statute of limitations, by showing that, within the period of twenty years, payment has been made on the judgment, or that it has been acknowledged by the defendant as existing and unpaid. Ang. on Dim., see. 93. Whether such payment or acknowledgment was made, will be considered in connection with the second proposition.

It is claimed that the action was barred by the statute of limitations of this state, passed in 1831, which was in force when the judgment sued on was rendered. That act limits actions on specialties to fifteen years after the right of action accrues. If it be conceded that a judgment rendered in another Estate, when it is made the ground of an action in this, is a specialty, within the meaning of that act, as claimed by the plaintiff in error, upon the authority of the case of Stoekwell v. Coleman (10 Ohio St. 33), the defendants in error then claim that, under the facts averred in the petition, the action was saved from the limitation by the provisions of the fifth section of that act, which is as follows:

“ That all actions founded on contracts, either expressed or implied, when any part of the principal or interest shall have been paid, or an acknowledgment of an existing liability, debt, or claim, or any promise to pay the same, shall have been made, within the time herein limited, such action may be commenced within the time hereinbefore limited, after such payment, acknowledgment, or promise.” 3 Chase Stat. 1768.

It appears from the record that the claim upon which the judgment sued on in this case was rendered, was secured by mortgage; that both belonged to the Lumberman’s Bank; that it obtained the judgment against the defendant, Bissell, and assigned a portion thereof, with said mortgage as security therefor, to the Branch Bank of the United States, of which the plaintiffs below are trustees. The Lumberman’s Bank, having the interest in said judgment and mortgage, after payment of the amount assigned to the Branch Bank of the United States, brought suit against the defendant, Bissell, and others, to subject the mortgaged premises to the payment of the judgment. On the first day of April, 1844, within fifteen years from the date of the claim secured by the mortgage, and within fifteen years before the commencement of this action below, the court rendered a decree, showing the facts and action of the parties so far as material to the question before us, as follows:

Finding the equities of said cause to be with the complainants. That the whole amount due upon said mortgage was then $45,521.23. That on the 6th day of November, a. d. 1837, the said Lumberman’s Bank at Warren, by their officer duly authorized for that purpose, assigned to the Branch Bank of the United States, at Erie, Pennsylvania, $12,357.32 of a certain judgment obtained by the Lumberman’s Bank against ^defendant, Edward Bissell; and also the said mortgage given by the said Edward Bissell to the said Lumberman’s Bank, to be held by the said Branch Bank of the United States, as collateral security, until the said amount last above-mentioned was fully paid. Also, further finding, that including principal and interest, there was- then .due upon said assignment, from the Lumberman’s Bank to the Branch Bank of the United States, $17,053.04, which is to be fix’st paid out of the moneys arising from the sale of said mortgaged premises.”

It was, therefore, by the consent of parties, decreed that said defendants pay, or cause to be paid, within ten days from the rising of this court the first above-mentioned sum of $45,521.23; . . .

or in default thereof, that said mortgaged premises, described in said bill, be exposed to sale, etc., and that the moneys arising from such sale be first appropriated to discharge the amount due the Branch Bank of the United States, and the remainder to the payment of the demand of said Lumberman’s Bank of Pennsylvania, after first paying the costs of this suit, out of the proceeds of said sale.”

It further appears from the petition in this case that the lands were sold, and a large amount, under said order*, applied upon so much of said judgment as was held by the plaintiffs below.

It is claimed by the defendants in error that the consent of the defendant, in the judgment sued upon, to the sale of the lands and application of the money, as shown in the record above recited, is such an acknowledgment of the debt or claim in suit as will bring the case within the saving provisions of the 5th section of the act relied upon by the plaintiff in ex’ror.

But, on the other hand, it is claimed that the acknowledgment, if any, is in another suit; and that it is not sufficient to take the case out of the statute.

It is, however, very clear from the record, that whatever acknowledgment is shown relates to the same “ liability, debt, or claim,” that is embraced in, and evidenced by, the judgment sued upon. This, it will be seen, is all that is required by the statute to be doxxe to come within its saving provisions.

Does the decree above quoted show “ an acknowledgment of an ^existing liability ” upon the debt upon which the action was brought ?

The leading English and American authorities upon this subject afford us but little aid upon this question. They were made in construction of the statute of 21 James, or those copied from it, as in the case of Bell v. Morrison (1 Peters, 351), which contained no provision like that of the 5th section of the act of 1831.

Since these authorities rest upon the theory that a promise, either express or implied, is alone sufficient to take a case out of the statute, they might well hold that “the acknowledgment must be clear and express,” and, as said in the case of Bell v. Morrison, if there is no express promise, but a promise is to be raised by implication of law from the acknowledgment of the party, such acknowledgment ought to contain an unqualified and direct admission of a present subsisting debt, which the party is liable and willing to pay.”

Much of the learning, however, displayed in the books upon this subject is of no application here ; for, in the language of the learned judge who delivered the opinion in the case of Hill v. Henry (17 Ohio, 9), in this state, “ the' law-making power itself has undertaken to prescribe what acts shall have the effect to suspend the operation of the statute, or, in other words, what acts shall operate to take the case out of the statute. One of these is an acknowledgment of the debt. Another is a promise to pay.”

It appears from the record that the “parties,” of whom Edward Bissell, was one, consented, on the 1st day of April, 1844, and that, therefore, as such party, he consented, that the land mortgaged to secure the very debt embraced in the judgment sued upon should be sold, and that the money arising from the sale should be applied “ to discharge the amount ¿we the BranchBank of the United States.”' It is a part of this very “ amount due ”—that remaining unpaid by the sale of the land—that the action below was brought to recover. We think that the consent of Bissell, as evidenced by the record, was an acknowledgment by him of “ an existing liability, debt, or claim,” which he was “ willing to pay ” or “ discharge ” by the appropriation of his lands to the amount then “ due ” the parties 509] ^severally entitled thereto. In whatever shape the claim existed, it was all the same debt; and, as payment of one would have been payment of the other, so an acknowledgment of the debt in one form was an acknowledgment of the same debt in another form.

The judgment of the district court is affirmed.

Scott, C. J., and White, Welch, and Brinkerhoee, JJ., concurred.  