Appeal by Michael A. Harmon, one of the defendants, from a judgment of the District Court of Hennepin County, Chas. M. Pond, J., entered February 18, 1893, granting to plaintiffs the relief they ■asked.

Frederick G. Mayo mortgaged to Eras tus W. Cutter, June 1, 1874, a large number of vacant town lots in Cutter’s Addition to Minneapolis to secure payment of $3,000, part of the purchase price. He had that day bought the lots of Cutter. The mortgage •contained the usual power of salé in case of default in payment, and was recorded in Hennepin County Registry. On October 5, 1874, Cutter borrowed $5,000 of Richard E. Hungerford of the State of Connecticut. He gave his note for that sum, and to secure its payment assigned to him this mortgage and other securities. The instrument of assignment stated that it was made as security for the payment of his note for $5,000. It was also duly recorded. 'Cutter soon after died testate and Stanford R. Newell was appointed executor of his will.' He paid the debt to Hungerford November 1, 1881, and Hungerford, on that day, reassigned the mortgage to Newell as executor of Cutter’s will. The execution of this reassignment was not acknowledged by Hungerford however until December 7, 1881, and the instrument was not recorded until December 12, 1881.

On November 25,1881, Newell, as such executor, commenced publication of notice of foreclosure sale under the power in the mortgage. It contained no reference to the assignment to, and reassignment from, Hungerford. It was in all other respects sufficient. The sale was made January 7, 1882, by the sheriff to Peter Wolford for ^5,000, and he received a certificate of sale. No redemption was made from this sale. The plaintiffs in this action, thirty-five in number, have since severally bought of Wolford one or more of the lots and they unite in this action to quiet the title. (1878 G-. S. ch. 75, § 4.) The defendants are Josephine A. Carter, Michael A. Harmon and John H. Burke. They are grantees from Mayo and claim that the foreclosure by Newell is invalid because the reassignment was not acknowledged or recorded, until seventeen days after the first publication of the notice of foreclosure salé. The trial court overruled this claim, citing Laws 1883, ch. 112. The defendant Harmon alone appeals.

The court below applied to the reassignment the old presumption which originated before acknowledgments were in use, that in the absence of any evidence to the contrary an instrument was delivered on the day it was dated. That old presumption is contrary to the actual facts in most cases. It is a decidedly strained inference, if it be regarded as matter of fact, and if as a presumption of law, it is simply unwarranted by experience. Blanchard v. Tyler, 12 Mich. 339; Johnson v. Moore, 28 Mich. 3; Clark v. Akers, 16 Kan. 166; Loomis v. Pingree, 43 Me. 299; Fontaine v. Boatmen’s Savings Inst., 57 Mo. 553.

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