to married women that it embraces a mortgage; and that section 15, supra, relates only to the deeds of persons sui juris, save so far as a time for recording is named; or otherwise no effect whatever can be given to the latter clause of section 23, which says: "This section shall not apply to the deed of a married woman unless re-acknowledged by her, and recorded. thereafter in proper time."

The statute made a difference between the deed of a married woman and that of a person sui juris.

In the latter case it was always valid inter partes, although never recorded; but in the former this was not true under the Revised Statutes, while it is under the General Statutes, the last clause of said section 23 having been omitted from the latter.

Under the Revised Statutes the purpose of recording in the one case was to give notice of the existence of the instrument, while in the other it was necessary to its validity; and if the deed of a feme covert was not recorded in proper time it was a nullity even inter partes.

If the recording of the feme's deed was necessary to pass her right, we see no reason why it was not equally as necessary in the case of a mere mortgage. If it was needful in the one case because there had to be a privy examination, then it was equally so in the other, as the same formality of execution was requisite.

The section of the statute which fixes the eight months limit for recording uses the term "deeds" in doing so; and the sections empowering a married woman to execute a mortgage use the same term, hence the limitation in the one section must have been intended to apply to the other, and this is the more evident because section 23, supra, speaks of a "proper time" within which the deed of a married woman must be recorded, and no time whatever is fixed by the statute save said eight months.

When the entire statute relating to the subject is considered, but one conclusion can be reached; and that is, that the recording of the mortgage in question within a certain time was

necessary to its validity, and that the appellant's loss results from his own neglect.

The husband, Edwin Francis, has no interest in the land. liable to the mortgage.

He acquired none at the death of his wife as they had previously sold it, and under the statute he could only become a tenant by the curtesy in the real estate owned or possessed by her at her death.

Judgment affirmed.

Sam'l McKee for appellant.
C. B. Seymour for appellees.

SULLIVAN, &c. v. KUYKENDALL.

(Filed January 22, 1885.)

1. Presumptions-Letters-Evidence-The fact of mailing a letter properly addressed, with postage prepaid, creates no legal presumption that it was duly received; but it is merely a fact which is to be weighed along with other evidence in determining the question, and to which no more presumption attaches than to any other fact.

2. Telephone message-Evidence-Where A, desiring to talk over the telephone with B, asked the operator to call him, and the operator thereupon had a conversation with B, reporting to A, who was standing by, what B said as it came over the wire, Held-In subsequent action between A and B the former might prove by himself and others what the operator reported to him as coming from B, the operator being called and not remembering the conversation.

Appeal from Warren Circuit Court.

Opinion of the court by Judge Holt.

By the terms of a verbal contract for the sale of personal property the appellants, Sullivan & Co., were to estimate and receive it within ten days after notice from the appellee, Kuykendall, that it was ready.

On January 26, 1880, he wrote them a letter, which by due course of mail should have been received by them within the next two days, but which in point of fact, as the testimony shows, was not received until February 17, 1880, notifying

them that the property would be ready for them on February 9, 1880.

About February 11th or 12th, 1880, Green river began rising, and by the 13th of the same month had overflowed its banks, and the property being along them, was in the main destroyed.

The letter above named was properly enveloped, stamped and deposited in the postoffice, and addressed to the appellants at their usual postoffice.

The lower court in substance instructed the jury that if they believed from the evidence that said letter was written; addressed to the appellants at their proper postoffice; duly stamped, and placed in the office, then the presumption was that it was received in due course of mail, and that this presumption must prevail unless overthrown by satisfactory evidence that it was not so received.

This instruction was doubtless based upon the statement to be found in some text books, and a few cases to the effect that when a letter is sent by the post it is to be presumed from the known course in that department of the public service that it reached its destination at the usual time, and was received by the person to whom it was addressed, if living there, and usually receiving his letters at that place.

It will be found, however, that the most of these cases go no further than to hold that in the absence of all other evidence upon the point that the mailing of a letter, properly directed, raises a presumption that it was received; and that this presumption must prevail unless rebutted by other testimony.

In the leading case of Huntley v. Whittier, 105 Mass., 391, the learned judge (Gray, J.) said that the depositing of a letter in the post office, addressed to a merchant at his place of business, is prima facie evidence that he received it in. the ordinary course of mail; but that the jury should be so instructed only in the absence of other testimony upon the point.

The case of Russell v. Buckley, 4 R. I., 525, is to the same effect; while authority is abundant that the mailing of a letter creates no presumption whatever that it was duly received.

In United States v. Babcock, 3 Dillon's C. C. Reports, 571, Judge Dillon uses this language: "Upon the subject of the admissibility of letters, by one person addressed to another, by name, at his known postoffice address, prepaid, and actually deposited in the postoffice we concur, both of us, in the conclusion, adopting the language of Chief Justice Bigelow, in Commonwealth v. Jeffries, 7 Allen, 563, that this is evidence tending to show that such letters reached their destination; and were received by the persons to whom they were addressed.”

This is not a conclusive presumption, and it does not even create a legal presumption that such letters were actually received; it is evidence tending, if credited by the jury, to show the receipt of such letters.

In the case of negotiable paper it has long been held that the depositing of a letter in the postoffice by the holder to the indorsers is not only good prima facie evidence, but sufficient to establish the fact that notice was given; but this rule has been established by the law merchant through commercial necessity.

By the common law this presumption did not exist even as to negotiable paper; and after a careful examination of the authorities we are satisfied that it ought not to be held to arise in ordinary business transactions, and especially between men whose business does not require them to watch the arrival of the mails. (Freeman v. Morey, 4 Me., 50; Nat. Bank v. McManigle, 69 Penn., 156; Greenfield Bank v. Crafts, &c., 4 Allen, 447.)

The mailing of the letter in this instance created no legal presumption, but was proper testimony to be considered by the jury, together with the other evidence, in determining when it was received, and they should not have been instructed that a presumption arose from it, which must prevail unless overthrown by other satisfactory evidence.

The instructions in other respects were unobjectionable.

The appellants relied upon an alleged new contract between them and the appellee by which the one sued upon was an

nulled; but this was a question of fact as to which the testimony was conflicting, and the finding of the jury would not, therefore, be disturbed, if this were the only question presented by this appeal.

In view of another trial of the case it is proper that we should pass upon what seems to us to be a new question as to the competency of certain testimony; at least we have been unable to find any direct authority upon it.

The appellee upon going to the place, on February 9, 1880, where the property was to be received did not find the appellants or any one representing them there.

He thereupon went to a telephone office at Morgantown, Ky., for the purpose of communicating with the appellants at Bowling Green, Ky.; and not being accustomed to the use of the instrument he got the operator to talk for him. He first directed him to call for the appellant, Sullivan, and he did so, the Bowling Green operator reporting back that he would send for him to come to the office. Presently the Morgantown operator told the appellee that Sullivan was at the Bowling Green office and desired to know what was wanted; and thereupon a conversation took place, Sullivan using the instrument himself while the Morgantown operator talked for the appellee, and told him what Sullivan said as it came over the wire.

The latter testifies that on that day he had a conversation over the telephone with some one at Morgantown, and upon the same subject to which the appellee says the conversation related; but they differ widely as to what was said. The Morgantown operator, being introduced as a witness, testifies that upon the day named he had a conversation upon that subject with some one at Bowling Green, whom the operator there told him was Sullivan, but that he does not recollect what was said. Under this state of case the court below permitted the appellee to prove by himself and two other persons, who were present at the time, what the Morgantown operator reported