grantor or grantors, and of the officer before whom the deed or written instrument was proved or acknowledged, certifying that such officer was, at the time of taking such affidavit or affidavits, duly authorized to take the same, and that such clerk or register is well acquainted with the handwriting of such officer, and verily believes that the signature to such jurat or affidavit is genuine. Such affidavit or affidavits shall be recorded with such deed or other written instrument, and be presumptive evidence of the facts therein stated.

3. This act shall take effect immediately.75

75 Repealed, chap. 547, Laws of 1896.

§ 314. Proof when witnesses are dead. When the witnesses to a conveyance, authorized to be recorded, are dead, its execution may be proved before any officer authorized to take within the state the acknowledgment and proof of conveyances, other than a commissioner of deeds, a notary public, or a justice of the peace. The proof of the execution must be made by satisfactory evidence of the death of all the witnesses thereto, and of the handwriting of such witnesses, or any one of them, and of the grantor, which evidence, with the name and residence of each witness examined, must be set forth by the officer taking the same, in his certificate of proof. A conveyance so proved, and certified, may be recorded in the proper office, if the original conveyance be at the same time deposited in the same office, there to remain for the inspection of all persons desiring to examine the same. If the conveyance affects real property in two or more counties, a certified copy of the conveyance, with the proof and certificates, may be recorded in each of such counties. Such recording and deposit are constructive notice of the execution of such conveyance to all purchasers of the same real property, or any part thereof, from the same vendor, his heirs or assigns, subsequent to such recording, but do not entitle the conveyance or the record thereof, or a transcript of the record, to be read in evidence.

Formerly section 263, Real Property Law of 1896, chapter XLVI, General Laws:

8263. Proof where witnesses are dead. Where the witnesses to a conveyance, authorized to be recorded, are dead, its execution may be proved before any officer authorized to take within the state the acknowledgment and proof of conveyances, other than a commissioner of deeds, a notary public, or a justice of the peace. The proof of the execution must be made by satisfactory evidence of the death of all the witnesses thereto, and of the handwriting of such witnesses, or any one of them, and of the grantor, which evidence, with the name and residence of each witness examined, must be set forth by the officer taking the same, in his certificate of proof. A conveyance so proved, and certified, may be recorded in the proper office, if the original conveyance be at the same time deposited in the same office, there to remain for the inspection of all persons desiring to examine the If the conveyance affects real property in two or more counties, a certified copy of the conveyance, with the proof and certificates, may be

same.

recorded in each of such counties. Such recording and deposit are constructive notice of the execution of such conveyance to all purchasers of the same real property, or any part thereof, from the same vendor, his heirs or assigns, subsequent to such recording, but do not entitle the conveyance or the record thereof, or a transcript of the record to be read in evidence.76

Section 263 was formerly 1 Revised Statutes, 761, sections 30, 31, 32, 33:

30. Where the witnesses to any conveyance, authorized by this chapter to be recorded, shall be dead, then the same may be proved before any officer authorised to take the proof and acknowledgment of deeds, other than commissioners of deeds, and county judges not of the degree of counsel in the supreme court.77

8 31. The proof of the execution of any conveyance in such case, shall be made by satisfactory evidence of the death of all the witnesses thereto, and of the handwriting of such witnesses, or any one of them, and of the grantor; all which evidence, with the names and places of residence of the witnesses examined before him, shall be set forth by the officer taking the same, in his certificate of such proof.78

§ 32. Any conveyance proved and certified, pursuant to the two last sections, may be recorded in the proper office, if the original deed be at the same time deposited in the same office, there to remain, for the inspection of all persons desiring to examine the same.79

$ 33. The recording and deposit of any conveyance, proved and certified according to the provisions of the three last sections, shall be constructive notice of the execution of such conveyance, to all purchasers subsequent to such recording; but such proof, recording, or deposit, shall not entitle such conveyance, or the record thereof, or the transcript of such record, to be read in evidence.80

Note on Section. The foregoing section of this act relates to proof for the purpose of the recording of conveyances, and not to their effect as evidence in judicial proceedings.81 This section is predicated of an unusual set of circumstances, and in view of that fact unusual care is directed to be observed in proving such deeds. The proof is not to be made before a commissioner of deeds, a notary public or a justice of the peace. It follows that such proof can be made, if within the State, only before the other officers mentioned in section 298 of this act.82 It is apparent that if deceased wit

76 Repealed by Real Prop. Law of 1909, 460, art. 14, chap. 50, Consolidated Laws. See below, § 46c.

77 Repealed, chap. 547, Laws of 1896.

78 Repealed, chap. 547, Laws of 1896.

79 Repealed, chap. 547, Laws of 1896.

80 Repealed, chap. 547, Laws of 1896.

81 Cf. Brown v. Kimball, 25 Wend. 259; Borst v. Empie, 5 N. Y. 33.

82 Supra, p. 961.

nesses to a deed were in their lifetime hostile to persons in adverse possession, a deed proved under this section might be well proved for the purpose of being recorded, and yet inadequately proved for the purpose of establishing a conclusive title under it.83

83 Cf. Code Civ. Proc., & 936.

§315. Recording books. Different sets of books must be provided by the recording officer of each county, for the recording of deeds and mortgages.; in one of which sets he must record all conveyances and other instruments absolute in their terms delivered to him, pursuant to law, to be so recorded, which are not intended as mortgages, or securities in the nature of mortgages, and in the other set, such mortgages and securities delivered to him.

Formerly section 264, Real Property Law of 1896, chapter XLVI, General Laws:

§ 264. Recording books. Different sets of books must be provided by the recording officer of each county, for the recording of deeds and mortgages; in one of which sets, he must record all conveyances and other instruments absolute in their terms delivered to him, pursuant to law, to be so recorded, which are not intended as mortgages, or securities in the nature of mortgages, and in the other set, such mortgages and securities delivered to him.84

Section 264 was formerly 1 Revised Statutes, 756, section 2:

§ 2. Different sets of books shall be provided, by the clerks of the several counties, for the recording of deeds and mortgages; in one of which sets, all conveyances absolute in their terms, and not intended as mortgages, or as securities, in the nature of mortgages, shall be recorded; and in the other set, such mortgages and securities shall be recorded.85

Effect of Record in Wrong Book. If a deed of conveyance is recorded in the liber of mortgages, it is not operative as notice.86 Mortgages. A deed absolute on its face, but accompanied by an unrecorded separate instrument of defeasance, or by some conditional bye-agreement operating as a defeasance, must be recorded as a mortgage to be effective as notice.87 But not every condition is a defeasance for the purposes of this section.88

84 Repealed by Real Prop. Law of 1909, § 460, art. 14, chap. 50, Consolidated Laws. See below, § 460.

85 Repealed, chap. 547, Laws of 1896.

868 320, Real Prop. Law; Gillig v. Maas, 28 N. Y. 191; Stoddard v. Rotton, 5 Bosw. 378; The Bank for Savings v. Frank, 45 N. Y. Super. Ct. 404; Hoschke v. Hoschke, 42 Misc. Rep. 125; cf. as to chattel

mortgages, Dickinson v. Oliver, 195 N. Y. 238. And see cases cited under $ 320, Real Prop. Law.

87 § 320, Real Prop. Law; Decker v. Leonard, 6 Lans. 264; Howells v. Hettrick, 13 App. Div. 366.

88 Macauley v. Porter, 71 N. Y. 173; Randall v. Sanders, 87 id. 578; Kraemer v. Adelsberger, 122 id. 467, 476; Holmes v. Grant, 8 Paige, 243, 260.