Page:Federal Reporter, 1st Series, Volume 3.djvu/453

 446 FEDERAL REFOBTEB. �corder's office and filed it for record. There is no direct tes- timony to show either that the grantees did or did not, at the time, have knowledge of and assent to the grant. �Whether they assented to the grant at the time, or subse- quently, or not at ail, is left to inference. If, therefore, the presumption of the law is that the grant was accepted by the grantees, that presumption must prevail. If the presump- tion is the other way, and the burden is upon the defendants to prove delivery to them, or something equivalent thereto, the conclusion must follow that plaintiff should recover, since no such affirmative proof is to be found in the record. �There are numerous cases whioh hold that the execution of a deed or mortgage, and the delivery of the same to the re- corder for record, without the knowledge or assent of the grantee or mortgagee, will not avail as against an attaching or execu- tion crediter of the grantor. Day v. Griffith, 15 lowa, 104; �4 Greenleaf's Cruise on Eeal Property, p. 12, note, and p. 13, note 1; Samson v. Thomton, 3 Met. 275; DentonY. Perry, �5 Vt. 382 ; Cohb v. Chase, 6 N. W. Eep. 264. �But the present case does not corne within the principle established by these authorities. �Whether the plaintiff can be regarded as standing in the same position as an attaching or execution creditor is imma- terial, since it does not appear either that the defendants ■were ignorant of the conveyance when made, or that they did not at any time assent to or aceept it before the bringing of this suit, One or the other must be shown. If the record- ing of the deed is intended as a delivery, and is known to the grantee, and he assents to the same, it will take effect. 2 Washburn on Eeal Property, pp. 580, 581. The ac- ceptance of the grantee will be presumed in such a case, if the deed be upon its face beneficiai to him, and the circum- etances are such as to warrant the conclusion that the grantor intended the delivery to the recorder to be for the use and benefit of the grantee, especially if the latter claima under it. 4 Greenleaf's Cruise, 12. �Again, the authorities are abundant in support of the prop- osition that the grantee in a deed executed and delivered to ����