Peck, 26 N. Y. 48. A mortgage, if "a grant in fee or of freehold estate,” under the revised statutes requiring attestation and acknowledgment, is good between the parties, though not attested or acknowledged: Payne v. Wilson, 11 Hun, 305, all citing the principal case to this effect; see Floyd v. Ricks, 58 Am. Dec. 374, and note.

ACTS OF PUBLIC OFFICERS PRESUMED TO BE REGULAR: Commonwealth v. Slifer, 64 Am. Dec. 680; Squier v. Stockton, 52 Id. 583; Farr v. Sims, 24 Id. 396; Terry v. Bleight, 16 Id. 101; Hartwell v. Root, 10 Id. 232; see Pennington v. Yell, 52 Id. 262. A sheriff's deed is presumptive evidence that the sheriff performed his duty in giving the notices required by law; for the neglect of duty by a public officer will not be presumed, but must be proved; and when a person is required to do an act, the not doing of which would make him guilty of a criminal neglect of duty, it shall be intended that he has duly performed it, unless the contrary be shown: Clute v. Emmerich, 21 Hun, 123; Wood v. Morehouse, 45 N. Y. 376, citing the principal case. But the recital of a vital jurisdictional fact, such as the appointment under statute of commissioners to make partition, made by the commissioners, is not evidence of the regularity of their appointment: Munro v. Merchant, 26 Barb. 395, citing the principal case.

TIME WITHIN WHICH PUBLIC ACT IS TO BE PERFORMED BY STATUTE is a directory, not a mandatory, provision: St. Louis County Court v. Sparks, 45 Am. Dec. 355; note to People v. Cook, 59 Id. 472. Therefore a literal observance of the direction as to time is not indispensable to the validity of the act: Matter of N. Y. Elevated R. R. Co., 7 Hun, 241. A provision of statute requiring general assignments for the benefit of creditors to be acknowledged by the assignor before delivery, and schedules to be made within twenty days thereafter, is directory merely: Fairchild v. Gwynne, 14 Abb. Pr. 128. But though a statute made in the affirmative, without any negative expressed or implied, does not take away the common law, yet a statute providing that every assignment for the benefit of creditors shall be executed in a certain prescribed manner is not a mere affirmative or declarative statute, but implies a negative that no assignment can be made in any other way: Hardman v. Bowen, 5 Abb., N. S., 335; S. C., 39 N. Y. 198-all citing the principal case. BONA FIDE PURCHASER WITHOUT NOTICE FROM ONE WITH NOTICE OF PRIOR UNRECORDED DEED.-Though an original purchaser is affected with notice of a prior deed, yet if he conveys to another without notice, the latter is as much protected as if no notice had been received by either: Webster v. Van Steenbergh, 46 Barb. 215. The recording statutes have changed the common law to the extent that a bona fide purchaser of real estate from a vendor charged with notice of a prior unrecorded conveyance can obtain a better position than his vendor only by recording his conveyance first, and thus getting priority upon the record: Westbrook v. Gleason, 79 N. Y. 31. A subsequent purchaser, spoken of in the recording act, is one who takes his deed after the actual execution of a deed to another, and who takes his deed without knowledge, actual or constructive, of the existence of such deed, and records his own deed first; and he will be protected when his chain of title is first on record, although the intermediate grantees were chargeable with bad faith: Fallass v. Pierce, 30 Wis. 461. Where the property of a husband is conveyed to the wife by means of conveyances properly recorded and appar ently regular, but really fraudulent and void, a bona fide purchaser from the wife, whose deed was first recorded, and who had no notice of the defect in the wife's title, would be protected against a purchaser at a sheriff's sale of the land as the property of the husband, whose deed was not recorded until

A pur

afterwards: Hoxie v. Price, 31 Wis. 89-all citing the principal case. chaser for value, without notice of the fraud in his vendor, stands upon as high ground in equity as any other creditor or cestui que trus': Hunter v. Lawrence's Adm'r, 62 Am. Dec. 640, note 647; Hoffman v. Noble, 39 Id. 711, and note collecting prior cases 716.

PURCHASER FROM ONE WHO IS PROTECTED BY RECORDING ACT, as against a prior unrecorded conveyance of the same land, is himself entitled to such protection, notwithstanding he purchased with notice of the prior conveyance, or without parting with a valuable consideration: Webster v. Van Steenbergh, 46 Barb. 214; Lacustrine etc. Co. v. Lake Guano etc. Co., 82 N. Y. 484; Bell v. Twilight, 45 Am. Dec. 367, and note citing prior cases 371. The title of a bona fide purchaser for a valuable consideration inures as such to the benefit of his grantee, though the latter had notice of the claims of devisees under a will, and did not pay a valuable consideration: Cole v. Gourlay, 79 N. Y. 532; S. C., 9 Hun, 495. One who is protected by the recording acts may convey good title as against those whose deeds are recorded before such conveyance: Page v. Waring, 76 N. Y. 469. The New York cases cite the principal case. But in general, a purchaser with notice of an unrecorded deed holds subject to that deed, though his own deed be first recorded: Van Rensselaer v. Clark, 31 Am. Dec. 280; Draper v. Bryson, 57 Id. 257, and cases cited in the note 265; Price v. McDonald, 54 Id. 657; Vose v. Morton, 50 Id. 750, and note.

PURCHASER AT JUDICIAL SALE INSTITUTED BY HIMSELF MAY BE BONA FIDE PURCHASER, within the recording acts. A bona fide purchaser at an execution sale, even though he be the execution creditor, will take the estate free from unrecorded deeds and prior equities of which he has no notice: Rooker v. Rooker, 75 Ind. 577, citing the principal case. At a sale under proceedings had in the surrogate's court for the payment of debts due by a decedent a purchaser bought land, paying therefor the whole purchase price. Although he was a debtor of the decedent, the purchase price was not applied directly upon the debt, but he actually parted with the consideration money. He was held to be a bona fide purchaser within the recording acts, and the case was said to be much stronger than the principal case: Barto v. Tompkins etc. Bank, 15 Hun, 13.

BONA FIDES OF PURCHASE AS AFFECTED BY NATURE OF CONSIDERATION UNDER RECORDING ACTS-PRE-EXISTING DEBT.-To constitute a bona fide purchaser within the meaning of the recording acts, the party receiving the subsequent conveyance must not only have received the same without notice of the prior unrecorded deed, but he must have received the same upon some new consideration advanced at the time, or must have relinquished some security for a pre-existing debt due him. If the consideration be a pre-exist. ing debt, the purchaser will not be protected: Pickett v. Barron, 29 Barb. 508, citing the principal case; Padgett v. Lawrence, 40 Am. Dec. 232, and note 240; Willis v. Henderson, 38 Id. 120; Bush v. Bush, 51 Id. 675. One is not a bona fide purchaser within the meaning of the recording acts when the only consideration he gives for his deed is a mortgage without a personal covenant on the property conveyed for the entire purchase price, and it appears that he would be in as good a position as he was in before he purchased if the unrecorded deed were declared paramount: Schroeder v. Gurney, 10 Hun, 417, citing the principal case. To constitute a bona file purchaser, full payment of the consideration must be made before notice of the adverse equity is received: Union Canal Co. v. Young, 30 Am. Dec. 212, and cases cited in the note 225. RECITAL IN DEED AS EVIDENCE OF PAYMENT OF CONSIDERATION.—The principal case is cited to the point that a recital in a deed of the payment of

a consideration is presumptive evidence of that fact: Vorebeck v. Roe, 50 Barb. 304; and if uncontradicted, is sufficient: Dooper v. Noelke, 5 Daly, 416. But in Bolton v. Jacks, 6 Robt. 234, 235, after examination of the authorities upon which the principal case was based in this respect, it was said that it was not authority that the consideration clause in a deed is sufficient in all cases, if uncontradicted, to establish the purchase for a valuable consideration by the grantee of the property conveyed thereby, as against a person claiming either adversely to such grantee or under the grantor by a title prior to the execution of such conveyance. The rule of the principal case, it was said, was confined to cases arising under the recording acts. In Hoyte v. Jones, 31 Wis. 404, it was said, citing the principal case, that bad faith or notice of the plaintiff's adverse title or want of consideration, which would defeat the conveyance to the defendant's grantor, were affirmative facts which it is incumbent upon the plaintiff to prove. And in this case the plaintiff's claim was under a prior unrecorded deed. A subsequent conveyance expressing a sufficient consideration and acknowledging its payment is evidence of a bona fide purchase for value to defeat a title claimed by another grantee under a prior unrecorded deed: Ring v. Steele, 4 Abb. App. Dec. 69; Lacustrine etc. Co. v. Lake Guano etc. Co., 82 N. Y. 483. In Shotwell v. Harrison, 22 Mich. 420, 426, it is held, Campbell, J., dissenting, that the recital in a recorded deed of the payment of a consideration is not prima facie evidence of that fact. There is no reason for assuming that the value of lands conveyed is less than the sum stated in the deed: Meeker v. Wright, 7 Abb. N. C. 301; S. C., 76 N. Y. 265. The recitals in an undertaking required by the code for the discharge of an attachment reciting the commencement of an action, the issuing of the attachment, the making of an application to discharge the same, estop the signers of the undertaking from contradicting them for the purpose of defeating the instrument: Coleman v. Bean, 14 Abb. Pr. 44. The recital of a consideration would be of no avail against the statutory presumption of fraud created in favor of creditors of the chattel mortgagor, or subsequent bona fide purchasers, where the chattel mortgagor is allowed to retain possession of the goods, but the mortgagee must give some evidence of the bona fides of the mortgage, the consideration, and good motives of the parties: Allen v. Cowan, 28 Barb. 106. All the above cases cite the principal case. The recital of the payment of a consideration in a deed is not evidence of that fact as against third parties: Bolton v. Johns, 47 Am. Dec. 404, and cases cited in the note 408. Contradicting by parol the recital of consideration: See Swafford v. Whipple, 54 Id. 408, and cases cited in the note 503; Burleigh v. Coffin, 53 Id. 236; Groves v. Steel, 46 Id. 551; Beach v. Packard, 33 Id. 185,

BLOSSOM V. GRIFFIN

[13 NEW YORK (3 KERNAN), 569.]

PAROL EVIDENCE OF ORAL NEGOTIATIONS LEADING TO WRITTEN INSTRUMENT is incompetent to influence its construction.

RULE EXCLUDING PAROL EVIDENCE TO AFFECT WRITTEN CONTRACTS does not reject an antecedent parol agreement of a different character, and imposing a very different, but not inconsistent, obligation.

IN CONSTRUING WRITING, IT IS PROPER TO LOOK AT ALL SURROUNDING CIRCUMSTANCES, the pre-existing relation between the parties, and then to see what they mean when they speak.

ONE WHO IS BOTH CARRIER AND WAREHOUSEMAN IS LIABLE AS CARRIER for goods deposited in warehouse as a mere accessory to the carriage; that is, deposited for the purpose of being carried without further orders; and his responsibility as carrier begins from the time of the receipt of the goods. RECEIPT GIVEN BY PARTIES WHO WERE CARRIERS AS WELL AS FORWARDERS stated that goods were received to be forwarded. The goods were burned in the warehouse before carriage commenced. Held, that the signers were responsible as carriers, not as forwarders only. The receipt did not exclude evidence of the circumstances under which it was given, and of an antecedent parol agreement to carry plaintiff's goods generally, and these showed that the words "to be forwarded" were not used in a technical sense.

APPEAL from a judgment for plaintiffs in an action against carriers for loss of goods. The facts appear in the opinions.

John L. Talcott, for the appellants.

J. L. Curtenius, for the respondents.

By Court, COMSTOCK, J. The goods in question were delivered to the defendants on the third of July, and during that night were burned without fault or negligence on their part. If at that time they were liable as forwarders only, they are not responsible for the loss. If, on the other hand, their liability as carriers had attached, then they must pay for the goods; and this is the question to be determined.

In

The defendants were both carriers and warehousemen. such a case, it is well settled that if the deposit of the goods in the warehouse is a mere accessory to the carriage, in other words, if they are deposited for the purpose of being carried without further orders, the responsibility of the carrier begins from the time they are received: Angell on Carriers, secs. 75, 131. So of an innkeeper, who is also a carrier by land; if he receives goods into his inn to be carried, he is liable as a carrier for any loss which may happen before they are put in transit: Id., sec. 133; Hyde v. Trent etc. Nav. Co., 5 T. R. 389.

In this case it appears that the plaintiffs were in the habit of sending their goods from Buffalo to New York, to be sold by their consignees. In the spring before the fire happened, they had agreed with the defendants to be their carriers, at a price which included both freight and warehouse charges; and under this agreement the defendants from time to time received goods from the plaintiffs at their storehouse and carried them through to New York. The referee has also found, as matter of fact, that the goods in question were received under this agreement.

They were therefore received for transportation, and within the principle which has been stated, were there nothing else in the case, it would be very plain that the defendants became liable as common carriers.

It has been urged, however, that the receipt which the plaintiffs took from the defendants on delivering the goods, declaring that they were received to be forwarded to the consignees, is conclusive against any theory of liability as carriers. The objection, I think, cannot prevail. It may be granted that the writing is more than a mere receipt; that it imports an agreement, and is therefore within the rule which excludes parol evidence where contracts are reduced to writing. But the rule itself is not quite so broad as the terms in which it is commonly stated would seem to imply. It only excludes any other evidence of the language used by the parties in making the contract than that which is furnished by the instrument itself: 1 Greenl. Ev. 316, 321. It excludes the colloquium or oral negotiation leading to the very contract which the parties consummate by reducing it to writing; but it does not reject an antecedent parol agreement of a different character, and imposing a very different but not inconsistent obligation. The defendants, as before stated, were carriers, and as such they were under a parol agreement to carry the plaintiffs' goods generally, and those in question in particular. Their storehouse was the place where they were in the habit of receiving goods for that purpose, and where their liability as carriers commenced. Now, although we concede that, looking at the receipt only, the goods were taken in to be forwarded in the strict and technical sense of the term, yet the defendants, in virtue of the antecedent agreement, were to take them from the storehouse as carriers, and transport them to New York. Keeping in view, then, the rule already stated, their liability as carriers at once attached. Unless it can be shown, therefore, that a forwarder's receipt cancels or in some way swallows up his antecedent agreement to take the same goods as a carrier, whether the latter engagement be by parol or in writing, the defense must fail; and I think that cannot be shown.

But the receipt itself, in my opinion, admits of a different interpretation from that which has been thus far conceded. In construing this, as every other writing, it is proper to look at all the surrounding circumstances, the pre-existing relation between the parties, and then to see what they mean when they speak. If no facts had been shown outside of the receipt itself,