
    Grady vs. Sharron.
    A deed for personal property takes effect from the date of its acknowledgment under the act of 1806, ch. 49.
    If the execution of a deed for personal property be admitted by the defendant to have taken place on the day it bears date, and proof of its delivery and the delivery of property mentioned in the deed, be made, such deed is admissible evidence in an action for the conversion of the property mentioned in the deed, though the deed has not been proved and registered according to our acts of assembly.
    It is not necessary to produce the witnesses to a deed when its execution is admitted by the defendant.
    In an action of trover for the conversion of personal property conveyed by deed, which deed was not properly registered, proof of the delivery of the property by the bargainor is competent independently of any question about the admissibility of the deed.
    Reuben Grady sued Thomas Sharron in the Davidson circuit court in trover, for having seized and sold a keel boat which had been mortgaged to him, Grady, by Thomas Gilbert. Plea, not guilty.
    
      On the trial of the cause, the plaintiff offered to read in evidence to the jury the deed of mortgage which had been given to him by Gilbert, by which said boat was mortgaged to him, which bears date the 27th August, 1831. The deed was acknowledged in the Montgomery county court, at the July term, 1832, by the bargainer, and registered the 24th August, 1832.
    The property, or greater part of that embraced in the mortgage, was in Montgomery county. The conversion took place in the intermediate time between the date of the deed and the acknowledgment in court. The court refused to permit the deed to be read in evidence to the jury, though the defendant acknowledged then by his counsel that it was executed the day it bears date, and the plaintiff offered to prove its delivery a day or two after to the agent of the plaintiff. The plaintiff then offered to prove the sale of the boat to him by the said bargainer, but the court refused to permit the evidence to go to the jury.
    The plaintiff then offered to prove the delivery of the boatio the agent of the plaintiff, and the subsequent seizure and conversion of the same by the defendant, before the commencement of this suit, but the court refused to permit the evidence to go to the jury.
    The plaintiff filed an exception to the several opinions of the court, and there being no other evidence, the jury found a verdict for the defendant.'
    Thompson, for plaintiff in error.
    The plaintiff says that the several opinions of the court are erroneous.
    1st. That the deed, though not registered, is good between the bargainer and bargainee, and the plaintiff had only to make out his title against the bargainer, till the defendant made his defence, and then the question of registration could only arise, in relation to creditors and purchasers.
    2d. The plaintiff, as mere bailee, or on the naked possession of this property through, his agent, could sustain 'this suit against a wrong-doer or trespasser, m which’ light the defendant stood, till his defence was heard,
    3d. The deed, from its acknowledgment, related hack to the time of its date, especially when its true-date was proved. See Cowper’s Reports, 203: Perkins, sec. 143, 144, 154: 1 Pirtle’s Dig. 252, sec. 18.
    4th. The deed is good though never registered, as the trespass was committed before the time for registration expired. The title to personals passes instan ter, and is not on the footing of real estate, where no title passes but by registration. See 3 Hay. 4,162.
    5th. The court, if right in rejecting the deed, were wrong in not receiving the evidence of sale and delivery of the boat by parol; for the decision rejecting the deed rendered it wholly inoperative; and the case did not fall within the rule prohibiting the proving by parol that which is evidenced by writing. Where the witness says that the facts he is about to relate were reduced to writing, the writing must be produced, but means a writing which is operative, and which, in some shape or other, might be produced and read to the jury. For instance, some-facts are incidentally spoken of by the witness, which, may have a bearing on the cause, but he says they were-reduced to writing by the parties, the writing must be produced. Suppose the plaintiff produced it, and it was-sealed and witnessed, the witness though was not present to prove it and it came in only collaterally. The court might say, possibly, the witness could not speak of the facts, nor should the paper be read for the want of proof of its execution, but it would be acknowledged that it was an operative paper, which, under the proper proof of which it was susceptible, could be read. But in the case before the court, the Judge below rejected the deed not for the want of proof of its execution, but because he thought that, quo ad the matter in dispute, it was void; if so, then there was no written agreement of the same tenor with the one offered to be proven by parol.
    6th. The property being delivered.to the agent of the plaintiff, it was good as a pledge, and there was no necessity for registration. See 4 Kent’s Commentaries, 132.
    7th. On the subject of delivery, its proof by one witness is sufficient. 4 Kent’s Com. 446: Perkins, sec.. 143, 144.
    
      F. B. Fogg, for the defendant in'error.
   Green, J.

delivered the opinion of the court.

In this case the first question is, whether the mortgage was properly rejected by the court. It was executed in October, 1831; the writ in this cause issued 13th April, 1832, and the mortgage was acknowledged in court at the July term, 1832, and registered 24th August, 1832.

By the third section of the act of 1806, ch. 49, it is provided, that when the execution of any deed of conveyance is established by the acknowledgement of the party executing the same, it shall take effect only from the date of such acknowledgement. There is no reason why this act should not he held to apply to deeds for personal as well as real property. It was made to guard against frauds which might be committed in ante-dating deeds, with a view to give them effect before the time of their actual execution. This reason for the law applies as well to deeds for personal as for real estate. The circuit court was therefore right in rejecting this deed as a registered paper, because it was acknowledged after the institution of this suit, and took effect only from that time. But we are of opinion, that as its execution at the time it hears date was admitted at the trial by the defendant, and proof of its delivery and of the delivery of the property conveyed by it was offered, the court ought to have heard the proof and have permitted the deed so proved to be read to the jury. It was surely good, as between the parties, without registration. It might be proved then on the trial according to the course of the common law. The production of the witnesses to the deed was unnecessary when the defendant admitted its execution. The proof which was offered of the delivery of the property of the plaintiff was competent, independently of any question about the admissibility of the deed.

The court below therefore] erred in the rejection of the deed, its execution having been admitted, and proof of its delivery being offered; and also in rejecting proof of the delivery of the property to the plaintiff: for which errors the judgment must be reversed and the cause re-’ manded for another trial.

Judgment reversed.  