
    Miller vs. Estill.
    Conveyance. Deed — regisrattzon, date of if omitted, koto supplied. If it appear from the Registry that a deed and the certificate of probate or acknowledgment endorsed thereon had been registered, but the date of the registration omitted, the Register or Deputy Register may be examined to supply the date.
    Ejectment for eight acres of land in the vicinity of Winchester. The action was commenced in Franklin circuit court on the 12th of Januarj, 1832. The demise was in the name of Thomas Miller, and notice of the action was served on Wallace Estill and Thomas Logan, who were admitted at July Term, 1832, to defend instead of the casual ejector, upon the common rule.
    On the 4th day of June, 1818, a judgment had been recovered in the county court of Franklin, by William Patterson against John Dougherty, for 1090 dollars debt, and damages, besides-costs of suit. To have execution of this judgment afi. fa. had been issued on the 18th of November, 1818, tested as of the preceding August Term, which had been suspended, by an injunction, which was not dissolved till the 14th of December, 1824.
    In the mean time, namely, on the 6th of March, 1820, Dougherty mortgaged the premises to Luke Tiernan & Son, to secure the payment of 3000 dollars which he owed them, conditioned to be absolute if he failed to pay the money and interest thereon in two years, from the 8th of January, 1820. The execution of this deed was acknowledged in the county court of Franklin at February Term, 1820; and upon it were endorsed the following certificates of registration:
    1. “This mortgage deed is registered in the register’s office of Franklin county, in Book F. page 327, 328 & 329.” Signed, “John J. Hayter, D. JR.” March 7, 1820.”
    “State op Tennessee. I, Jesse Wallace, Register of Franklin county, do hereby certify that the foregoing deed of mortgage, as well as the certificate of acknowledgment thereon endorsed, are registered in the register’s office of said county, in BookF., pages 327,328 and 329; but there is no date to the registration of said deed and certificate, 26th of July, 1836. Jesse T. Wallace, Register.”
    On the 23d of December, 1824, an alias fieri facias was issued- upon Patterson’s judgment against Dougherty, tested as of November Term, 1824, which was levied upon the premises, but owing to a mistake in the advertisement, a sale was not effected. A pluriesfi. fa. was now issued on the 9th of March, 1825, tested as of February Term, preceding. This was levied upon the premises on the 11th of March, and on the 25th of April, 1825, they were exposed to sale; and Thomas Miller, the lessor of the plaintiff, became the purchaser. On the 8th of June, 1825, the Sheriff made him a deed, the execution of which was proven in Franklin circuit court on the 12th of July 1828, and registered on the 14th of the same month. This deed was the plaintiff’s title.
    Tiernan and Son filed a bill in the chancery court of Mc-Minnville, against Dougherty, to foreclose the aforesaid mortgage, and on the 16th of June, 1828, a decree of foreclosure was pronounced, under which the premises were sold on the 1st of November, 1828, to Luke Tiernan & Son, to whom the commissioner, who executed the decree, made his deed, dated the said 1st of November, 1828, the execution of which was acknowledged in February ¡829, and it was registered on the 17th of March, 1829. The mortgage deed, and the commissioner’s deed, were read by the defendants to show au outstanding title.
    The case was tried at September Term, 1838, before his Honor Judge Maechbanks, and a jury of Franklin. On offering the mortgage deed in evidence, the defendant’s counsel examined John J. Iiayter, who proved that he had been deputy under John Keeton, formerly register of Frauklin county, and that the first certificate of registration endorsed on the mortgage deed was in his hand writing, and was put there by him as deputy register. The defendant then offered to read the certificate as evidence to the jury, but upon the objection of the plaintiff’s counsel, it was rejected by the court, to which the defendant excepted, and the court signed a bill of exceptions stating the facts- The defendant then read the deed from the commissioner in chancery, to Tier-nan & Son, and now introduced Hayter again, to prove the time of the registration of the mortgage deed. The plaintiff objected to this, but the court allowed him to state, that judging from the certificate itself, which was in his hand writing, it was made on the 7th of March, 1820, but he had no recollection of the time. He said, however, that it was made before 1825. The plaintiff tendered a bill of exceptions to the decision of the court admitting this testimony of Hayter as to the time of the registration, which was signed by the court.
    January 23.
    His Honor charged the jury, that as the law stood at the date of the deed, from the Sheriff to the lessor of the plaintiff, and of the mortgage deed from Dougherty to Tiernan & Son, if a deed were registered within twelve months from its execution, it took effect from its execution, but if not registered within that time, it took effect only from the registration; that the certificate of Wallace, the register, upon the mortgage deed, was evidence that the deed and certificate of probate thereupon were registered; but not as to the time when they were registered; that as the time of the registration does not appear from the record of registration, it is competent for the defendant to show by parol evidence, and the jury must determine from that evidence the time of the registration.
    The jury found a verdict for the defendants, and the court gave judgment accordingly. The plaintiff appealed in error.
    Taul, for the plaintiff,
    said — This is the same case which has been twice before this court, and is reported in 8th and 10th Yerger.
    When the case was first before the court, the decision turned upon the priority of the registration of the deeds, under which the parties respectively claimed the land in controversy.
    Upon the second trial in the court below, the circuit judge rejected the mortgage deed from Dougherty to Tiernan, (under which defendants claim,) on the ground of the insufficiency of the probate, or clerk’s certificate of the acknowledgment of the deed by Dougherty.
    When the case came before this court a second time, the judgment of the court below was reversed, and the probate declared to be sufficient. Vide 10 Yer.
    On the third trial, the only material question was, the pri ority of registration.
    The defendants produced the original deed, (at the first and second trial a copy was used.) The endorsement on the deed, purporting to be a certificate of registration, by John J. Hayter, D. R. was rejected by the court.
    The defendants then introduced Mr. Hayter to prove the time when the deed was registered. This was objected to by plaintiff, but the objection was overruled, and H. examined as a witness for the purpose aforesaid; and the Judge charged the jury that it was competent to prove the time of registration by parol.
    It is believed by the plaintiff in error, that it would be just as competent to prove the fact of registration by parol, as to prove the time when it was done by parol.
    The decision of the circuit judge is so palpably erroneous, as not to require authorities or argument to prove it.
    James Campbell, for the defendant,
    said — The only question now presented, that is considered material to examine, is this. The mortgage deed under which defendants claim, was duly acknowledged and admitted to registration about the time it bears date. It was registered, but the register failed to fix a date on his book, showing the time when it was registered. John J. Hayter, the deputy register, proves in substance that he registered the deed before he went out of office, which was in 1825, and which is early enough to overreach the claim of plaintiff. His certificate on the deed shows the same fact, though it was rejected by the court as a certificate, on account of its alleged informality, though it is not seen for what reason. It is objected by plaintiff, that the time the deed was registered cannot be proved by parol, or by any other evidence, short of the register's books themselves. There is no statute requiring the register to state upon his book the date of the registration. So there is no statute requiring the clerk of a court to state the hour when a judgment is rendered; and hence, whenever it becomes important to ascertain at what time a judgment was rendered, so as to determine whether a judgment or a deed, both dated on the same day, claims priority, you resort to parol evidence to ascertain the fact of priority. The principle involved in this question is settled in Murfree’s Heirs v. Carmack <§• Williams, 4 Yer. 270.
    January 28.
    Starkie, part 3, p. 576, parol evidence may be used concurrently with written evidence.
    Evidence may be adduced to prove a bond was given at a different time from its date. 2 Starkie, 572, 573.
   Turley, J.

delivered the opinion of the court.

The plaintiffs and defendants claim title to the premises in dispute, under John Dougherty.

The plaintiff, by virtue of a sheriff’s deed of conveyance, dated 8th of June, 1825, and registered 14th July, 1828; the defendants, by a deed of mortgage from John Dougherty, dated 6th of March 1820, and registered in the register’s office of Franklin county, in Book F., pages 327, 328, 329, which registration is signed by John B. Hayter, D. R., and dated March 7, 1820.

This court has heretofore determined in this case, that the date of the registration cannot be established by the signature of John Hayter, he not being an officer recognized by the law; and upon the trial in the court below, from which this appeal is taken, Hayter was introduced as a witness, and proved the registration of the deed of mortgage to have been made on the day mentioned.

To the reception of Hayter’s testimony, the plaintiff objected, which objection was over-ruled.

The only question now presented for re-consideration is, whether, when the register neglects to state on his books, the date of the registration of a deed, it may be proven by parol?

We think it may, or otherwise, persons may be deprived of their estates, by the mere negligence or fraud of a ministerial officer, without any neglect or default whatever on their part, a conclusion certainly to be avoided.

This court, in the case of Murfree’s Heirs vs. Carmack & Williams, 4 Yer. 271, held that where a judgment was rendered against a person on the same day, on which he executed a deed of conveyance for his land, proof of the precise period of the day when the judgment was rendered, and the deed executed was admissible to determine which had priority.

This case we think stronger than the one now under consideration, and as conclusive upon the point debated. We, therefore, think there was no error in receiving the testimony of Hayter, and affirm the judgment of the court below.  