Statement of the Case.

At the taking of the depositions before the examiner, the plaintiff, having given notice to Ashford and to Kelly to produce the original deed, and both of them having failed to do so, was permitted, against the defendant's objection, to put in evidence a copy of the deed and acknowledgment, certified by the recorder to be a true copy.

No consideration was actually paid for the conveyance. The value of the lots conveyed was, according to Thompson's testimony, $4000 each or $16,000 in all, or, according to Ashford's testimony, not less than $3400 each or $13,600 in all.

Thompson testified that he never had any negotiations with Ashford about the property; and that he was induced to make this deed by the assurance of Kelly that the grantee would assume the incumbrances upon the land and relieve him from liability upon the notes he had given secured by mortgage.

Ashford testified that he never had any negotiations with any one about the purchase of the land; and that in February, 1877, Kelly, who was his father-in-law, to whom he had lent much money and for whom he had endorsed several notes, told him that, in order to secure him from loss, he had procured a conveyance to be made to him of these four lots, in which he thought "there was considerable equity;" informed him at the same time that there were incumbrances or mort gages upon the property, but did not specifically mention any of them, except the $1500 mortgage upon lot 5; told him that the interest on this was pressing, and that, if he would pay it, Kelly would relieve him from any further trouble as to the incumbrances; and advised him to go on and collect the rents of the property, so as to indemnify himself against that interest and pay the taxes in arrears.

It was proved that Ashford in March, 1877, entered into possession of the four lots, and paid the taxes previously assessed upon them, and also paid interest accruing under the mortgage for $1500 on lot 5, and collected the rents of the four lots, until December 4, 1877, when he sold and conveyed lots 7 and 8 to one Duncan, subject to existing incumbrances thereon; and continued to collect the rents of the other two

Citations for Appellant.

lots, and to pay the interest accruing under the mortgage for $1500 on lot 5, until March 14, 1878, when this lot was sold, pursuant to the provisions of that mortgage, by public auction and conveyed to Harkness for the sum of $1700, which was insufficient to satisfy the amount then due on that mortgage.

On comparing Ashford's testimony with that of Boarman, the plaintiff's attorney, and with a letter written by Ashford to Boarman on October 3, 1877, it clearly appears that Ashford was informed of the clause in the deed to him, assuming payment of incumbrances, and was requested to pay the plaintiff's mortgage, as early as September, 1877, and then, as well as constantly afterwards, declined to pay it, or to recognize any personal liability to do so. There was no direct evidence that he knew of this clause before September, 1877.

The plaintiff brought an action at law upon the note against Thompson as maker and Kelly as endorser on November 13, 1877, and recovered judgment against both in December, 1877, on which execution issued and was returned unsatisfied, April 15, 1878.

The present bill was filed May 13, 1878. A decree dismissing the bill was rendered in special term, May 9, 1882, which, after the death of Ashford and the substitution of his executrix in his stead, was affirmed in general term, February 16, 1885, upon the grounds that Ashford had never accepted the deed to him, and also that the plaintiff's remedy, if any, was at law. 3 Mackey, 455. On the same day, as the record states, "from this decree the plaintiff appeals in open court to the Supreme Court of the United States, which appeal is allowed." The appeal bond was approved February 18, and the appeal was entered in this court April 10, 1885.

The case was argued upon a motion to dismiss the appeal for want of sufficient amount in controversy to give this court jurisdiction, as well as upon the merits.

Mr. Walter D. Davidge, (with whom was Mr. William W. Boarman on the brief,) for appellant, cited to the point that, under the circumstances, Ashford had become personally liable

Argument for Appellee.

to the holder of the note: Trotter v. Hughes, 12 N. Y. (2 Kernan) 74; S. C. 72 Am. Dec. 137; Spaulding v. Hallenbeck, 35 N. Y. 204; Belmont v. Coman, 22 N. Y. 438; S. C. 78 Am. Dec. 213; Locke v. Homer, 131 Mass. 93; Pike v. Brown, 7 Cush. 133; Crawford v. Edwards, 33 Michigan, 354; Urquhart v. Brayton, 12 R. I. 169; Huyler v. Atwood, 26 N. J. Eq. (11 C. E. Green) 504; Bishop v. Douglass, 25 Wisconsin, 696; Ricard v. Sanderson, 41 N. Y. 179; Halsey v. Reed, 9 Paige, 446; King v. Whitely, 10 Paige, 465, and cases therein cited; Curtis v. Tyler, 9 Paige, 432; Garnsey v. Rogers, 47 N. Y. 233; Pardee v. Treat, 82 N. Y. 385; Lawrence v. Fox, 20 N. Y. 268; Burr v. Beers, 24 N. Y. 178; S. C. 80 Am. Dec. 327; Thorp v. Keokuk Coal Co., 48 N. Y. 253; Atlantic Dock Co. v. Leavitt, 54 N. Y. 35; Vrooman v. Turner, 69 N. Y. 280; Hoff's Appeal, 21 Penn. St. 200; Moore's Appeal, 88 Penn. St. 450; Merriman v. Moore, 90 Penn. St. 78; Townsend v. Long, 77 Penn. St. 143; Justice v. Tallman, 86 Penn. St. 147; Miller v. Thompson, 34 Michigan, 10; Strohauer v. Voltz, 42 Michigan, 444; Booth v. Conn. Mut. Life Ins. Co., 43 Michigan, 299; Crowell v. Currier, 27 N. J. Eq. (12 C. E. Green) 152; Klapworth v. Dressler, 2 Beasley (N. J.) 62; S. C. 78 Am. Dec. 69; Norwood v. Dellart, 30 N. J. Eq. (3 Stewart) 412; Crowell v. Hospital of St. Barnabas, 27 N. J. Eq. (12 C. E. Green) 650; Thompson v. Bertram, 14 Iowa, 476; Corbett v. Watermann, 11 Iowa, 86; Lamb v. Tucker, 42 Iowa, 118; Bowen v. Kurtz, 37 Iowa, 239; Schmuc ker v. Sibert, 18 Kansas, 104; Rogers v. Herron, 92 Illinois, 583; Gautzert v. Hoge, 73 Illinois, 30; Coffin v. Adams, 131 Mass. 133; Miller v. Billingsly, 41 Indiana, 489; Fitzgerald v. Barker, 70 Missouri, 685; S. C. 26 Am. Rep. 660, note, where some of the above cited cases are discussed; George v. Andrews, 60 Maryland, 26.

Mr. George F. Appleby and Mr. Calderon Carlisle for appellee.

I. The copy from the record would be proof if deed was delivered of a conveyance of the lots in question by Archie Thompson to Ashford, — proof of the covenants of Thompson,

Argument for Appellee.

but it is proof of nothing else. The assumption clause is urged as either a personal contract or evidence of a personal contract. There is no law requiring such a contract to be recorded, and hence a copy from the record is not evidence; the original has not been produced or proved to have been lost, and if this is offered as proof of such a contract for personal liability, it has been objected to and is not competent evidence. Judson v. Dada, 79 N. Y. 373, 378.

II. But this deed only speaks for the grantor; it purports to be an indenture but is only a deed-poll, and of itself it cannot bind Ashford; indeed, if the contract is this clause in the deed, and not something growing out of transactions between the parties amounting to a contract of which the recital is a mere mention, we have an unsigned promise imputed to Ashford to answer for the debts of Archie Thompson. The cases, which seeming similar, hold such a promise by a vendee to a vendor to be without the statute, are all cases where there is a clearly proved transaction between parties in which the vendee for an equivalent makes a vendor's debt his own before he makes any promise as to it. Browne on Stat. of Frauds, 214-214 e.

III. But suppose the deed in all its parts to be perfectly proved before the court, the warranty clause destroys all the force of the assumption as to complainant, whose lien is not enumerated nor excepted, and is a claim under the grantor; "certain," "not all," "incumbrances," cover taxes, which were claims not under the grantor, and there was both a tax sale and an unpaid tax resting on the property. Even a mortgage excepted from covenant against incumbrances, is not excepted from warranty. Estabrook v. Smith, 6 Gray, 572; S. C. 61 Am. Dec. 445; Harlow v. Thomas, 15 Pick. 66; Maher v. Lanfrom, 86 Illinois, 513, 523. Taxes are incumbrances. Long v. Moler, 5 Ohio St. 271; Mitchell v. Pillsbury, 5 Wisconsin, 407.

IV. The complainant is forced, even if the foregoing points be not well taken, to prove actual notice of and assent to this assumption clause by Ashford, and this cannot be inferred or presumed. There is no proof that the deed was ever delivered to or seen by Ashford.

Argument for Appellee.

The recording of it did not amount to a delivery nor did it charge Ashford with notice of the assumption clause. Bull v. Titsworth, 29 N. J. Eq. (2 Stewart) 73; Cordts v. Hargrave, 29 N. J. Eq. (2 Stewart) 446; Mead v. Brun, 32 N. Y. 277.

While assent may be presumed to that which is beneficial, it is never presumed to that which is detrimental. Higman v. Stewart, 38 Mich. 513. There must be an intelligent assent to fasten a liability such as this upon a man; here is none.

The payment of interest is not inconsistent with Ashford's not having assumed the incumbrances. Elliott v. Sackett, 108 U. S. 132; Drury v. Hayden, 111 U. S. 223.

The subsequent conveyance to Duncan at Kelly's request, under the circumstances, does not fix this liability.

The collection of rents was in pursuance of an understanding with Kelly and at his request to indemnify Ashford for interest paid out by him, Ashford. Girard Trust Co. v. Stewart, 86 Penn. St. 89.

There is no act of Ashford inconsistent with his ignorance of the assumption clause up to the early spring of 1878, when Mr. Boarman read it to him. On discovery that a second trust was really existent, he repudiated the whole matter and refused to hold the property and go on paying interest on Harkness' note.

V. The transaction between Kelly and Ashford was really a mortgage though absolute on its face. Arnaud v. Grigg, 29 N. J. 485. Refers to Garnsey v. Rodgers, 47 N. Y. 233.

In Elliott v. Sackett, the deed was reformed on the ground of mutual mistake.

In Kilmer v. Smith, 77 N. Y. 226, the deed was reformed on account of ignorance of one party and fraud of another.

In Drury v. Hayden, suit was by mortgagee and the court denied relief, and reasoned that deed might have been reformed. See, also, Albany Savings Inst. v. Burdick, 87 N. Y. 40, 44; Dey Ermand v. Chamberlin, 88 N. Y. 658.

VI. This complainant shows no pretence of a right in a court of equity. There is nothing whatever in the record to charge the conscience of Ashford. He kept back no purchasemoney and assumed no trust.