LAWRENCE v. FARLEY

LAWRENCE v. FARLEY. N. Y. Supreme Court, First Department ; General Term, March, 1881. Record of Deed as Evidence of its Delivery—Proof necessary to Render party liable on Covenant to assume Mortgage. —Burden of Proof of Delivery of Recorded Deed. —Identity of Name, as Evidence of Identity of Persons. In a foreclosure suit where it is sought to render liable for the deficiency a grantee, of the mortgagor, who was declared by the deed to have assumed the payment of the mortgage, proof of the record of the deed raises a presumption that the title vested in the grantee, and that he is bound by the covenent to assume the mortgage, unless there is some evidence tending to show the contrary. Proof of the recording of a conveyance is prima facie evidence of its delivery, and is sufficient to cast the burden of proving the contrary on the grantee, if he wishes to escape from an obligation which the deed imposes upon him. The identity of the grantee in a deed with the person sued as such, may be inferred from identity in name. The certified copy of the record of a deed, in which the grantee is declared to have assumed a mortgage, is admissible in evidence where it is sought to charge him with the payment of the mortgage, without other proof ,of the delivery of the deed. Appeal from judgment in foreclosure. On the trial ■ the judge excluded the certified copy of the record of the deed containing the assumption clause relied on, on the ground that it was not competent without some extrinsic evidence of delivery or acceptance. Charles N. Black, for plaintiff, appellant. Albert Cardozo (Richard S. Newcomb, attorney), for defendant, respondent. See the previous case. [MAJORITY] The court, in an opinion by Daniels, J., held as above, and reversed the judgment, and ordered a new trial. [CONCURRENCE — Davies, P. J., concurred,] Davies, P. J., concurred, on the ground that record .was sufficient in the first instance; but expressed the opinion that very slight evidence would suffice to change the burden of proof, so as to require further evidence of delivery or acceptance. [DISSENT — Brady, J.,] Brady, J., dissented.