case that the deed was void for want of.a grantee, and an objection made to the introduction of the deed on that ground. We understand the case to hold that the words “Gilmore & Ware” sufficiently indicate a firm composed of two persons, the name of one being Gilmore, and the other Ware. That would of course indicate lawful grantees, and furnish the basis on which such grantees could be identified by evidence aliunde, as was done in that case. We do not think that the case holds that the use of a firm name is in itself sufficient to establish the identity of the individual partners, and distinguish them from the rest of the world. In all cases of this kind to which our attention has been called, the court has required extrinsic evidence to establish the identity of the grantees. See Lumber Co. v. Ashworth, 26 Kan. 212; Shaw v. Loud, 12 Mass. 446; Newton v. McKay, 29 Mich. 1. There was in this case an assignment from Charles R. Dean to Salmon I. Beecher and another from Salmon I. Beecher to G. 8. Barnes, both assignments purporting to convey an interest in the mortgage. But there is nothing in either assignment showing that either said Salmon I. Beecher or said Charles R. Dean is, or pretends to be, the Beecher or the Dean named as a grantee in the mortgage. However persuasive the circumstances may be of the existence of such fact, we do not think the law presumes it from the circumstances. On the other hand, it is said: The law will not presume that an assignment of an instrument will be made by a stranger to it. This is doubtless correct also. The law indulges no presumption in either direction, but simply requires the party upon whom rests the burden to make certain that which upon the record is uncertain. For the reasons above stated the attempted foreclosure in this case was a nullity, and the trial court was correct in so holding. But, as the invalidity of the proceedings is apparent on the face of the record, no action can be maintained to set them aside, and for that reason the case is reversed and remanded, with instructions to the district court to dismiss the complaint.
Wallin, J., having been of counsel, did not sit. Templeton, judge of the first judicial district, sitting by request, dissents.
