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. Opinion of the Court. If he had known all about the Thompson note, and had promised to pay it, the complainant's remedy would have been at law. Ins. Co. v. Bailey, 13 Wall. 620, 621. If Ashford had made a promise to a third person to pay the debt due Miss Keller on the authority of this court, she might have maintained assumpsit. Hendrick v. Lindsay, 93 U. S. 143; Lawrence v. Fox, 20 N. Y. 268; Burr v. Beers, 24 N. Y. 178; S. C. 80 Am. Dec. 327; Elliott v. Sackett, supra ; Shepherd v. May, 115 U. S. 505, 510. MR. JUSTICE GRAY, after stating the case as above reported, delivered the opinion of the court. The motion to dismiss for want of jurisdiction must be denied. This appeal was claimed and allowed February 16, 1885. At that time, the act of February 25, 1879, c. 99, was in force, which provided that "the final judgment or decree of the Supreme Court of the District of Columbia, in any case where the matter in dispute, exclusive of costs, exceeds the value of twenty-five hundred dollars, may be reëxamined and reversed or affirmed in the Supreme Court of the United States upon writ of error or appeal." 20 Stat. 321. The case is not affected by the act of March 3, 1885, c. 355, § 1, further limiting the appellate jurisdiction of this court, because that act only provides that "no appeal or writ of error shall hereafter be allowed" from any such judgment or decree, unless the matter in dispute, exclusive of costs, exceeds the sum of five thousand dollars. 23 Stat. 443. The change of phraseology, referring to the time when the appeal or writ of error is allowed, instead of to the time when it is entertained by this court, was evidently intended to prevent cutting off appeals taken and allowed before the passage of the act, as had been held to be the effect of the language used in the act of 1879. Railroad Co. v. Grant, 98 U. S. 398. In a suit founded upon a contract, the sum in dispute at the time of the judgment or decree appealed from, including any interest then accrued, is the test of appellate jurisdiction. Bank of United States v. Daniel, 12 Pet. 32, 52; The Patapsco, 12 Wall. 451; New York Elevated Opinion of the Court. Railroad v. Fifth National Bank, 118 U. S. 608; Zeckendorf v. Johnson, 123 U. S. 617. By the express terms of the promissory note sued on in this case, it bore interest at the rate of eight per cent yearly from its date until paid. Computing interest accordingly, the sum in dispute was much more than $2500 at the time of the decree in general term, which was the decree from which this appeal was taken. In Railroad Co. v. Trook, 100 U. S. 112, cited for the appellee, as in District of Columbia v. Gannon, 130 U. S. 227, the judgment in special term wàs for damages in an action sounding in tort, which bore no interest, either by the general law, or by the judgment of affirmance in general term. Nor can the objection of the defendant, that the original deed from Thompson to Ashford was not produced, or its execution proved, be sustained. The deed is admitted to have been duly recorded. There is no presumption that it was in the possession of the plaintiff, who was not a party to it; but it is to be presumed to have been in the possession, either of Ashford, the grantee named in the deed, or of Kelly, who procured the deed to be made, and to whom it was originally delivered. Both of them having failed to produce it upon notice to do so, the recorder's copy was competent and sufficient evidence of the contents of the deed, as between the parties to this suit. Rev. Stat. D. C. $$ 440, 467; Dick v. Balch, 8 Pet. 30. But upon the merits of the case we are unable to concur with the views expressed by the court below, in its opinion reported in 3 Mackey, 455, either as to the effect of the testimony, or as to the rights of the parties. The material facts, as they appear to us upon full examination of the record, have been already stated. It remains to consider the law applicable to those facts. The questions to be decided concern the extent, the obligation and the enforcement of the agreement created by the clause in the deed of conveyance from Thompson to Ashford of this and three other lots, "subject, however, to certain incumbrances now resting thereon, payment of which is assumed by said party of the second part." Opinion of the Court. The five mortgages made by the grantor, namely, the plaintiff's mortgage for $2000 and a prior mortgage for $1500 on lot 5, and a mortgage of $2000 on each of the three other lots, and some unpaid taxes which had been assessed against the grantor, were incumbrances, and were the only incumbrances existing upon the granted premises at the time of the execution of this conveyance. Rawle on Covenants (5th ed.) § 77. The clause in question, by the words "certain incumbrances now resting thereon," designates and comprehends all those mortgages and taxes, as clearly as if the words used had been "the incumbrances," or "all incumbrances," or had particularly described each mortgage and each tax. We give no weight to Thompson's testimony as to Kelly's previous conversation with him to the same effect, because that conversation is not shown to have been authorized by or communicated to Ashford, and cannot affect the legal construction of the deed as against him. It was argued that, because the deed contains a covenant of special warranty against all persons claiming under the grantor, the words "certain incumbrances" cannot include the mortgages made by the grantor, but must be limited to the unpaid taxes which, it is said, would not come within the covenant of special warranty. But the answer to this argument is that any person claiming title by virtue of a lien created by taxes assessed against the grantor would claim under the grantor, equally with one claiming by a mortgage from him; and incumbrances expressly assumed by the grantee are necessarily excluded from the covenants of the grantor. Ashford is not shown to have had any knowledge of the conveyance at the time of its execution; and a suggestion was made in argument, based upon some vague expressions in his testimony, that the conveyance was intended to be made to him, by way of mortgage only, to secure him against loss on his previous loans to and endorsements for Kelly. But his subsequent acts are quite inconsistent with the theory that the conveyance did not vest the legal estate in him absolutely. Within a month or two after the conveyance, having been told that the four lots had been conveyed to him and were |