90 N.Y.S. 575 | N.Y. App. Div. | 1904
The judgment is without evidence to support it. The action is brought to foreclose a mortgage on real estate executed by the defendant Catherine P. McbTally to the plaintiff on the 29th day of May, 1900. The mortgage was recorded June 2, 1900. The mortgagor denied its execution, but the court found to the contrary
The appellant, Anna M. Smith, however, is the owner of the real estate, and has been from the time when a deed to her from Catherine P. McNally was delivered. This deed is dated January 27, 1896, and it covers all the mortgaged property. It was acknowledged July 8, 1896, but was not recorded until August 25, 1900. No evidence was given to impeach the deed nor is there any finding adverse to its validity. A deed is presumed to have been delivered at the time of its date notwithstanding it may be acknowledged afterwards. (People v. Snyder, 41 N. Y. 397; Biglow v. Biglow, 39 App. Div. 103, 105.) In People v. Snyder (supra) the court said (p. 402): “ No other evidence was given than that which the deed itself furnished, for the purpose of showing the time of its delivery ; and under the state of the proof, the law presumes it to liave been delivered at the time of its date. Seymour v. Van Slyck (8 Wend. 403, 414); Cowen & Hill’s Notes, 3d ed., part 1,461, part 2, 588, and cases cited; and Duke of Cumberland v. Graves (3 Seld. 305,308)
The judgment should be reversed and new trial granted, costs to abide the final award.
All concurred.
Judgment reversed and new trial granted, costs to abide the final award of costs.
7 N. Y. 305, 308.— [Rep.