
    Wright et al. v. Hull.
    
      Paper offered as evidence of indebtedness — More than thirty years old — Not admissible as “ancient document,” when — Must be accompanied by certain proofs — Q%iestion of presumption of payment — Statute of linvitations.
    
    1. A paper which is offered as evidence of indebtedness, and the execution of which is put in issue by the answer of the defendant, is not admissible as an ancient document proving itself, but must be accompanied by evidence that it came from the proper custody and evidence of its antiquity, although it may purport to be more than thirty years old.
    
      2. When such paper or document bears on its face, or is accompanied by, suggestions or circumstances which raise a presumption of payment or that the claim may be barred by the statute of limitations, it must be aided by proof of rebutting circumstances in order to sustain a claim thereunder.
    
      3. Where the foundation of an action was a certain paper writing purporting to be more than thirty years old and the execution of which was denied in the defendant’s answer, and where the only evidence cm behalf of the plaintiff was proof of presentation to and rejection by the defendant and a paper in the form following: “Received of H. Esq., on the 7th day of August, A. D. 1873, Three Thousand Dollars, to be returned, with , interest, from that date, at the rate of twelve per cent, per
    
      annum, out of the first receipts, from the sale of lands bought by us from Messrs. C., P. and others in Athens County Ohio, after we are reimbursed for advances for its payment. $3,000.00. (Signed) B. & W.,” together with a statement from the books of B. that B. & W. had on August 1, 1873, procured of H. $3,000 and paid the same on the purchase price of land purchased from C.; and where the only evidence on behalf of the defendant was an endorsement on the back of said paper in -the form following". “One Thousand Dollars of the within three thousand dollars I am to James L. Birkey for that sum belonging to him. Sept. S, 1873. (Signed) PI.,” and also the testimony of, witnesses that the said paper writing was not in the handwriting of B., a direction to the jury by the court to return a verdict for the defendant was not erroneous.
    (No. 11600
    Decided March 7, 1911.)
    Error to the Circuit Court of Licking county.
    The defendant in error brought'suit in the court of common pleas, June 14, 1904, against Henry O. Norris, as executor of the last will of Jerome Buckingham, and others, alleging that before August 7, 1873, Jerome Buckingham and Virgil H. Wright purchased eight hundred’ and forty acres of coal land in Athens county, Ohio, at $75,962; that said Buckingham and Wright procured from the plaintiff $3,000 which they paid on the purchase money for said land; that thereupon the said Buckingham and Wright executed and delivered to the plaintiff, as evidence of their indebtedness for said $3,000, a paper writing, of which the following is a copy:
    “Received of Eli Hull, Esq., on the 7th day of August, A. D. 1873, three thousand dollars, to be returned to him,' with interest from that date at the rate of. twelve per cent, per annum out of the first receipts from sale of lands bought by us from Messrs. Coe, Pherson and others, in Athens county, Ohio, after we are reimbursed for advances in its payment.
    “$3,000. (Signed) Buckingham & Wright/'’
    That said Buckingham and his devisees and the said Wright and his. devisees and heirs at law have ever since been and still are in possession of said lands except as they have leased the same to third parties upon royalties for removal of the coal underlying the surface of said lands, and that they have not sold nor conveyed the same or any part thereof; that neither said Buckingham nor said Wright nor their heirs or representatives have paid said $3,000, nor'any part thereof, and that there is due plaintiff thereon $3,000 with interest from August 7, 1873, at the rate of twelve per cent.; that said Wright died in 1877 and said Buckingham in 1902; that both Wright and Buckingham died testate, leaving certain disposals in regard to said lands; that Buckingham and wife and the heirs and devisees of Wright, on or about the 8th day of May, 1901, leased and sold to the Modoc Coal & Mining Company the coal underlying said lands contained in the great vein called No. 6; that said lease provided that the lessee should pay a royalty of eight cents a ton for lump coal and that the lessee should take out not less than 75,000 tons per annum for twenty years; that the making of said lease disabled Buckingham and Wright and their devisees from selling said lands for twenty years, except subject to said lease; that defendants had made no effort to sell the same; that plaintiff presented said claim to Plenry O. Norris, as executor of Buckingham, in May, 1904,. and same was rejected. The plaintiff prays that a trust be declared in his favor in said lands and interests for the sum of $3,000 and interest thereon from the 7th of August, 1873; that the same be made a lien upon the lands aforesaid, etc.
    Such proceedings were had in the case that all the parties defendant were dismissed from the case, excepting Henry O. Norris, executor of the last will and testament of Jerome Buckingham, deceased.
    The answer of Norris, executor, as a first defense, admitted the purchase of the coal land, the possession of the premises since that time, the decease of Virgil H. Wright and Jerome Buckingham and the provision of their wills; that the land was properly described; the execution of the lease to the Modoc Coal & Mining Company; and denies each and every other allegation in the petition contained. The second defense in said answer sets up the fact that the lands in controversy were coal lands having thereunder .several valuable veins of coal and especially one vein called the great vein, or No. 6; that these veins of coal constituted substantially the entire value of said land and constituted the consideration and inducement of the said Wright and Buckingham to buy the said lands; that the execution of the lease aforesaid was a sale of the coal underlying said lands, being the material which constituted its chief value, and was the only sale of any part of said lands ever made; that Wright and Buckingham paid $75,962.52 for said lands; that they have received in rents and royalties $32,195, and no more from the date of said lease up to and including the month of May, 1906. The third defense of said answer was after-wards withdrawn. The fourth, fifth and sixth plead various clauses of the statute of limitations. The seventh defense sets up usury. The eighth defense was in substance as follows: that if the said Buckingham and Wright ever received said $3,000, or ever executed said paper, which the defendant denies, it was provided by the terms of said agreement that Buckingham and Wright should sell said lands within a reasonable time and pay said $3,000 and interest to said plaintiff, Hull; that reasonable time would be August 8, 1888, or fifteen years from the date of the paper; that this action was not commenced until the 14th day of June, 1904, or more than fifteen years after said cause of action accrued; and that therefore said action is barred by the statute of limitations.
    On the trial of the case in the court of common pleas, a jury having been impaneled, the plaintiff, to maintain the issues upon his part, called the defendant, Henry O. Norris, and proved a certain book which was found among the effects of the late Judge Jerome Buckingham, and offered pages sixty-eight and sixty-nine thereof, which tend to show that the said Jerome Buckingham and Virgil H. Wright procured of Eli Hull $3,000 on the first of August, 1873, and paid the same on the purchase money of the lands in controversy. Whereupon the plaintiff introduced and offered to read in evidence the receipt and contract in evidence, on the ground that it was an ancient document, which was objected to by the- defendant. Thereupon the court admitted the receipt in evidence as an ancient document. Whereupon the plaintiff rested his case and the defendants moved the court to arrest the testimony from the jury and direct a verdict for defendants, which motion the court overruled.
    The defendants, to maintain the issues on their part, offered in evidence an indorsement written upon the back of said receipt and contract sued on in the petition, which reads as follows:
    “One thousand dollars of the within three thousand dollars I am to James L. Birkey for that sum belonging to him.
    “Sept. 5, 1873. (Signed) Eli Hull/"
    This was objected to by the plaintiff, but the court overruled the objection and admitted the indorsement and the evidence, to which the plaintiff excepted. The defendant further introduced the testimony of several witnesses who stated that they were acquainted with the handwriting of Jerome Buckingham and that this paper writing was not in his handwriting. And the foregoing was all the evidence introduced by either party.
    Afterwards, on request of the defendant, tite court directed the jury to return a verdict against the plaintiff and for the defendant, the executor of Jerome Buckingham, deceased, upon the ground that the effect of the indorsement on the back of this receipt or instrument is to transfer to Birkey one thousand dollars of this fund. The plaintiff excepted to this ruling of the court and prosecuted error to the same in the circuit court of Licking county, which reversed the judgment of the court of common pleas, and this proceeding is instituted for the purpose of reversing the circuit court and affirming the judgment of the court of common pleas.
    
      Messrs. Jones & Jones and Messrs. Nor pell & ■ Nor pell, for plaintiffs in error.
    The paper signed “Buckingham & Wright” was the sine qua non of the right of Hull to recover. Without it there was no case made.
    It was not admissible as an ancient document.
    It almost shocks the sense of legal propriety to propose that a promissory note being the basis’ of an action was admitted in evidence over objection, as an ancient document. 1 Greenleaf on Evidence, Sec. 21.
    It seems to us that the doctrine of ancient documents ought to be confined to cases of deeds and wills and papers relative to pedigree and the identity of persons, and that promissory notes can never become ancient documents for the purpose of enforcement, but only as evidence on the above subjects.
    However that may be, upon the most liberal application of the doctrine of ancient documents, this paper can not be held to come within the rule. Stephen’s Digest, Ohio Ed., 325; Bell v. Brewsler, 44 Ohio St., 694.
    No time is fixed by the paper in which the sale or sales are required to be made, but Buckingham & Wright can not escape their obligation to pay Hull by merfely neglecting to make' sale. They could not put off the sale forever and defeat Hull’s claim. They agree to make sale, and pay him if the sale produces enough.
    
      Where no time for the performance of a contract is fixed in the contract, it is implied by the law that the performance must occur within , a reasonable time. Nunez v. Dautel, 19 Wall., 560; Lewis v. Tipton, 10 Ohio St., 88.
    We cite also on the proposition that where a contract provides no time of performance, the performance is required within a reasonable time: Stewart v. Herron, 77 Ohio St., 130; Harris v. Oil Co., 57 Ohio St., 127; Van Arsdale v. Brown, 18 C. C., 56; 2 Parsons on Contracts (9 ed.), *661; 11 American Digest, Cent. Ed., 1043, Sec. 945; Ramot v. Schotenfels, 15 Ia., 457; Works v. Hershey, 35 Ia., 340; Williston v. Perkins, 51 Cal., 554; Page v. Cook, 28 L. R. A., 759, 164 Mass., 116; Randall v. Johnson, 59 Miss., 317; Smithers v. Junker, 41 Fed. Rep., 101; Kincaid v. Higgins, 1 Bibb (Ky.), 396; Jones v. Eisler, 3 Kans., 134; Harkinson v. Placer Co., 6 Colo., 269; Culver v. Caldwell, 137 Ala., 125; Ubsdell v. Cunningham, 22 Mo., 124; Noyer v. Barnard, 63 Fed. Rep., 782; Noland v. Bull, 24 Ore., 479; Sears v. Wright, 24 Me., 278; Crooker v. Holmes, 65 Me., 195.
    
      Mr. B. F. McDonald and Mr. Charles H. Kibler, for defendant in error.
    We refer on the question of admissibility of the paper as an ancient document to 17 Cyc., 443; Bell v. Brewster, 44 Ohio St., 690, and the treatises on evidence.
    We claim on the grounds hereinafter mentioned that there was no error in sustaining the demurrer to that defense. It stated that it was provided by the terms of said agreement that Buckingham and Wright should sell the lands within a reasonable time and pay said money and interest to said Hull; that this time expired on August 8, 1888, when the cause of action accrued and that this action was barred for the reason that it was not brought until June 18, 1904, more than fifteen years after the cause of action had accrued.
    In the eighth defense no facts or circumstances are given, but there is this legal conclusion: “that it was provided by the terms of said agreement (the agreement even is not set forth) that said Buckingham and Wright should sell said lands within a reasonable time and pay said moneys with interest to said Hull,, and that, that time to do it was within fifteen years, etc. There being no facts or circumstances alleged which would justify the conclusion that a reasonable time could be deduced, the court of common pleas was right in sustaining the demurrer to the answer on that ground. Sawyer v. Colgan, 102 Cal., 283, 36 Pac. Rep., 580.
    The double contingency here differentiates this case from others. Coupled with the-fact that Buckingham and Wright were not liable to pay the money, and, therefore, did not owe it, until the two contingencies happened, this case is brought within the doctrine of DeWolfe v. French, 51 Me., 420.
    For cases where the debt is absolute, but payable out of a particular fund when collected or realized, which hold that the statute begins to run at the collection of the fund or when it -is available, and not before, see Scott v. Osborne, 2 Munf., 413; Fernandes v. City, 46 La. An., 1130; Stanton v. Stanton, 37 Vt., 411; Tonkin v. Baum, 114 Pa. St., 414; Middletown v. Hospital, 16 R. I., 319, 15 Atl., 800.
    In case of a pledge, the statute does not begin to run against the debt secured by a pledge as long as the creditor has possession of the pledge. Bank v. Hyams, 42 La. An., 729; Angell on Limitations, Sec. 173.
    For twenty-eight years irom the date of the receipt and agreement the whole matter was in statu quo. Before the expiration of the thirty years, which our opponents graciously allow us in which to complain, a radical change in the situation occurs by the act of Buckingham and the representatives of Wright, who violate their agreement by the execution of the lease.
    We claim that then, for the first time, Hull’s cause of action accrued, and that he had the statutory time in which to complain and sue.
   Davis, J.

If the reason given by the court of common pleas, for directing a verdict for the defendant, were the only reason therefor which may be found in the record, we should feel disposed tó affirm the judgment of the circuit court reversing the judgment of the court of common pleas; because, assuming that the indorsement on the -back of the instrument constitutes an equitable assignment of an interest, it would still seem to be only a matter of making an additional party at the costs of the plaintiff. • There are, however, other considerations' which appear to us to conclusively show the correctness of the judgment in the court of common pleas, notwithstanding a wrong reason was given for it.

Although the paper writing which is set out m the plaintiff’s petition, and which is in form both a receipt and a contract, is put in issue in all respects by the answer of the defendant, it was offered in evidence and admitted, over the objection of the defendant, as an ancient document, without any evidence as to who had the custody of it, from whom it came, or as to the antiquity and genuineness of it, which were disputed; nor any evidence to explain numerous suspicious circumstances which appear on the face of the document and in connection with it; nor any evidence to rebut the presumption which arises after the lapse of twenty years. In short, it was allowed to go to the jury as proving itself in every respect, except with the aid, whatever it may be, of a statement in the book of the decedent, Buckingham, that he and Wright had procured from Hull, the plaintiff, $3,000 and paid it on the purchase price of the land mentioned in the petition. Aside from the proof of presentation of the claim to and its rejection by the executor of Buckingham, this was the whole evidence on part of the plaintiff. The defendant not only objected to the introduction of the paper in evidence, but he clinched his objection at this point by a motion to arrest the testimony from the jury and to direct a verdict. This motion was overruled, and thereupon the defendant offered in evidence the indorsement on the back of the paper; and he also called three witnesses who testified that the paper was not in the handwriting of Buckingham, whose estate is sought to be held liable for this obligation. And this was all the evidence produced on the trial. Was this sufficient to justify the case being submitted to the jury?

An ancient document is one which is not less than thirty years old, the time to be computed from the date of the execution of the instrument. In order to render it admissible as evidence, there must be at least some evidence accounting for its custody andn that it was produced from the proper custody; and there must be at least some evidence of its antiquity, although it may purport to be ancient. The statement sometimes made, and apparently acted upon in this case, that ancient doc-,, uments prove themselves, is too broad and must be taken with the limitations already stated, especially when the document is accompanied with circumstances of suspicion. 2 Elliott on Evidence, Secs. 1323, 1324. In Wilson v. Betts, 4 Denio, 213, Bronson, C. J., said: “But the mere fact that the instrument has existed for more than thirty years, unaided by other proofs, can not be enough to establish it in a court of justice. In the ordinary affairs of men it is very often assumed without proof that he whose name has been affixed to a written instrument placed it there himself. But when signing becomes a matter of legal controversy, it must be established by proof. And showing that the instrument is thirty years old has no greater tendency to prove it genuine than would the fact that it had existed for a single day. The mere fact of existence, whether the time be long or short, has no tendency whatever, in a legal point of view, to prove the due execution of the instrument. It may be said in any case that a deed is probably genuine because it is not probable that any one would forge it; but when the execution of the deed is in question, courts never act upon such presumptions. It has sometimes been loosely said that when there are no circumstances of suspicion, a deed thirty years old proves itself. But there is no just foundation, either in principle or authority, for such a dictum. I need not go over the cases.”

In the case now in hand there was no proof, and there was no attempt to prove, that the paper had been kept by and was produced by the. plaintiff. True it is that it was produced and offered in evidence by the plaintiff’s attorneys, which, if there were no suspicious circumstances connected with it or suggested by it, might be sufficient; but such there are. When and by whom was it made? It bears no date, and while it recites that the money was received by Buckingham and White August 7, 1873, that date is not synchronous with the date in Buckingham’s book, where it is stated that $3,000 was procured from Hull, the plaintiff, and paid as part of the purchase money. There, the date is August 1, 1873, and nothing is said there about return or repayment of the money, or about the terms or manner thereof, as in the paper writing. There was no attempt to explain this discrepancy. The execution of the paper by Buckingham and Wright is put in issue by the answer, and defendant produced testimony that the document is not in Buckingham’s handwriting, and nothing to the contrary appears, nor anything to show that it was in the handwriting of Wright.

Again, both at common law and in equity, after the lapse of twenty years from the maturity of an indebtedness, a presumption that it has been paid arises, and in the absence, of rebutting evidence, the presumption is so far controlling that the court may dismiss the petition or direct a verdict. 22 Am. & Eng. Ency. Law (2 ed.), 591, 595, 599. So again, if the statutory limitation of fifteen years had' elapsed after right of action had accrued, and' that appears from the instrument itself, the court might direct a verdict.

Hence, it becomes important to determine when the cause of action accrued under this instrument, if it be shown to be admissible. A leading case is Hicks v. Shouse, 17 B. Monroe (Ky.), 483, in which it was held that .an obligation to pay five hundred dollars “so soon as I sell my house and lot in the city of Lexington, and until said sale is made I promise to pay eight per cent, interest on said sum,” because due in a reasonable time, and that seven years, which was the time before suit in that case, was long enough for the payee to wait.

“Where there is a present indebtedness due absolutely, and the happening of some future event is fixed as a convenient time for payment merely, and such future event does not happen, the debt is payable within a reasonable time.” Noland v. Bull, 24 Or, 479.

It was held in Williston v. Perkins, 51 Cal., 554, that if a builder of a vessel promises to pay for work done on the same when it is sold, he is entitled to only reasonable time within which to finish and sell it, and if he fails within a reasonable time to do so, the agreement to pay becomes absolute.

In Sears v. Wright, 24 Me, 278, it was held that where a note is made payable “from the avails of the logs bought of M. M, when there is a sale made,” it is not payable upon a contingency, but absolutely, when a reasonable time has elapsed to make a sale' of the logs.

The foregoing are typical cases. There are many others of the same import. We refer to one other, Lewis v. Tipton, 10 Ohio St., 88, which was a case involving construction of a promissory note in the following form: “June 20, 1855. For value received, I promise to pay to the order of James A. Tipton, ninety-five dollars in current money of Ohio, when I can make it convenient, with ten per cent, interest till paid.” This court held that the note was payable in a reasonable time after its date.

Finally, on this point, it was determined by this court, in a recent case, that ordinarily an issue as to the reasonableness or unreasonableness of anything is a mixed question of law and fact; but where the facts are clear and undisputed, it is purely a question of law. Kroll v. Close, 82 Ohio St., 190.

We therefore are warranted in holding that this paper writing purports to be an agreement to pay within a reasonable time. It has no date, but from what appears on its face and in the indorsement on the back thereof, its date may be assumed to be some time prior to September 5, 1873; and in the absence of any evidence of rebutting circumstances, we may safely say that ten years, and even less, was a reasonable time within which the obligors should pay this claim of three thousand dollars and interest. Hence, the statute of limitations, as well as the presumption of payment in twenty years, would begin to run ten j^ears from the time of the execution of the instrument. That is to say, that this paper, the foundation of the plaintiff’s action, would be actually barred by the statute of limitations in twenty-five years from its execution, and the presumption of payment at common law and in equity would be complete in thirty years from its execution, unless it be shown by evidence that a reasonable time for payment would be much longer than we have fixed it. Yet the plaintiff, with all of these presumptions and suspicions against the paper, contents himself, and insists that it proves itself and that it be admitted as an ancient document to stand alone and make out his whole case without any explanation or support whatever. It was so admitted, and that was error. But if it be left standing in the record, we think that the proof fails to sustain the issues on part of the plaintiff.

The judgment of the circuit court is reversed and that of the common pleas affirmed.

Reversed.

Spear, C. J., Shauck, Price and Johnson, JJ., concur. Donahue, J., not participating.  