¶1 (dissenting). Plaintiffs, Hilary Rochford and his wife, Minnie A. Rochford, entered into an agreement with defendant, Jesse A. Murphy, and wife to exchange certain real estate. They gave *708 a deed of their property to defendant and in return received a deed from defendant and wife. This transaction appears to have taken place October 28, 1935. On January 11, 1936, Mr. Murphy and wife acknowledged and delivered another deed with a corrected description of the same property which he had agreed to transfer to plaintiffs. The first deed received by plaintiffs from Mr. Murphy was not recorded, and prior to receiving the second deed with a corrected description, a judgment creditor of Mr. Murphy filed a levy upon the Murphy property. Plaintiffs thereafter paid the judgment against Mr. Murphy, represented by the levy, and filed suit against defendant Murphy for recovery of the amount so paid for breach of covenant against incumbrances. The trial court entered a judgment in favor of plaintiffs, and defendant appeals.
¶2 Plaintiffs’ claim is supported by evidence that at the time of the exchange of deeds, plaintiff Rochford stated to defendant Murphy that there was a question about the description in the Murphy deed; and that defendant said that he would later furnish a correct title. Plaintiffs did not go into possession of the property until December 11, 1935. The levy of the judgment creditor had intervened between the exchange of the deeds and the time plaintiffs took possession. By January 11, 1936, plaintiff Hilary Rochford found that the description in the Murphy deed was incorrect, as he had surmised, and thereupon interviewed Mr. Murphy who executed, acknowledged, and delivered a new deed with the correct description. While the deed was dated October 28, 1935, it was acknowledged January 11, 1936. The question before us is whether defendant Murphy is bound by his warranty against incumbrances in the deed acknowledged January 11, 1936, or *709 whether his liability is limited to the deed which he presented to the plaintiffs on October 28, 1935. If his only obligation of warranty is under the prior deed, he would not be liable because of the incumbrance of levy thereafter attaching to the property; if his warranty of title depends upon the deed acknowledged January 11, 1936, he is liable, as his covenant was against such incumbrance.
¶3 The first deed from defendant Murphy to plaintiffs is not' in evidence. It was lost; but'the fact is of no importance in our determination. It is the rule that the-date of acknowledgment upon a predated deed is presumed to be the date of execution and delivery. Blanchard v. Tyler, 12 Mich. 339 (86 Am. Dec. 57); Johnson v. Moore, 28 Mich. 3; Miller v. Peter, 158 Mich. 336. There is no dispute that the latter deed was acknowledged on the date in question. The covenant of warranty became operative upon the delivery and acceptance of the deed by the grantee. At the time Mr. Murphy acknowledged the deed on January 11, 1936, there was no suggestion of any limitation, in the covenants of warranty restricting them to a prior date, and defendant was apparently not concerned as to its own protection in so limiting the warranty. If we accept the testimony as true, there was a question with regard to the description of the property at the time the first deed was presented, and plaintiffs’ apprehensions of a mistaken description were justified when it was discovered that the description was wrong and Mr. Murphy consented to give a deed with the proper description. There would seem to be no obligation on the part of plaintiffs to record a deed to protect their property interests when they had a justifiable belief that the property was misdescribed. Plaintiffs did not go into possession of the property until after *710 the levy, of which they were ignorant, had been made. The deed acknowledged by defendant January 11, 1936, must be held to be a conveyance of that date.
¶4 Defendant, however, .maintains that he had no notice to- defend oh the covenant and that the payment of the judgment debt by plaintiffs without such notice to him deprives them of any action on the warranty. There is evidence that upon learning of the levy, plaintiffs notified defendant of the situation, and he advised them that he could do nothing about it, and had no money to take care of the judgment.
¶5 It is contended, however, by defendant, that no written notice was given to him of proceedings involving validity of the incumbered title and that such notice being required, defendant is not liable in default of receipt thereof, citing Mason v. Kellogg, 38 Mich. 132. We are of the opinion that defendant cannot complain of lack of notice or opportunity to remove the incumbrance. There was testimony that when it was called to his attention, defendant said that he knew all about it, and that when he was asked to take care of the matter, defendant’s' answer was that he did not have any monejr. Under such circumstances the giving of any more formal notice was unnecessary where it appeared that the giving of it would avail nothing and serve no useful purpose.
¶6 Judgment should be affirmed, with costs to plaintiffs.