Gifford v. McCloskey , 45 N.Y. Sup. Ct. 350 ( 1885 )

Pratt, J.:

One of the issues' in the cause was as to whether defendant McCloskey ever accepted the conveyance to him of the premises foreclosed upon, and upon this issue plaintiff had the burden of proof» ¥e find no evidence in the case upon that subject. It does not appear that the deed was delivered to him or that he ever entered into possession of the premises, exercised dominion or authority over them or made any claim under the conveyance to him placed upon the record. Inserting his name n the deed and placing it upon record would not create a liability on his part. (Best v. Brown, 25 Hun, 224; Day v. Mooney, 6 T. & C., 382.) In some cases a presumption of acceptance might arise where acceptance would be for the benefit of the grantee, but no such argument can be used here, as the incuznbz’ances are shown to be equal to the whole value of the estate. As the answer contained a distinct averment that defendant never accepted nor' knew of the conveyance the-plaintiffs were well apprised of the necessity of evidence upon that, issue.

The defense of defendant O'Connor, as executor of McEvoy,. rests upon the alleged invalidity of the conveyance to his testator, from which it is argued that no consideration existed for his assuming the mortgage.

The case of Parkinson v. Sherman (74 N. Y., 88) decides that where the grantee’s possession under the deed is undisturbed, be cannot resist the claim of the mortgagee to enforce the covenant to assume the mortgage debt. In the case at bar McEvoy entered upon the premises, assumed control and executed a conveyance puz’porting to convey them. No interference with the possession is shown, nor can any be reasonably appz’ehended. The assuming of the mortgage was the consideration upon which the property was conveyed and has been enjoyed. Established legal principles forbid any relief to the estate of McEvoy. As to Archbishop McCloskey, the judgment appealed from should be revez’sed, without costs, with leave to plaintiff to discontinue as against him, without costs. Iu other respects judgment affirmed, with costs.

Barnard, P. J., conczzrred; Dykman, J., not sitting.

Part of judgment appealed from reversed as to McCloskey, without costs, and affirmed in other respects, without costs.