Simrall, J.,
delivered the opinion of the court.
Both parties trace title back to the same, source. Mrs. Claiborne derives title through Mrs. Dunbar, to whom William Dunbar had conveyed the premises. Mrs. Holmes derives title by purchase, and a commissioner’s deed, under a decree foreclosing a mortgage executed by William H. Dunbar, to Jos. B. Thatcher. Mrs. Claiborne is the devisee of Mrs. Dunbar. Each party claims the superior right by reason of the respective conveyances of W. H. Dunbar. The question then is, Which is prior and superior, the absolute conveyance to Mrs. Dunbar, or the mortgage to Thatcher ? The deed to Mrs. Dunbar bears date the 10th of January, 1860, was acknowledged the 18th of January, 1860, and was lodged with the clerk for record the 30th of the same month. The mortgage to Thatcher was dated January 14th, acknowledged on the 18th, and on the same day lodged with the clerk for record. Mrs. Claiborne insists that her title, under the registry act, is valid against all subsequent conveyances or incumbrances of W. [149]*149H. Dunbar, from the date of his deed to Martha Dunbar. She also claims the benefit of constructive notice, by reason of the possession of the locus in quo by her devisee. Mrs. Holmes insists that the mortgage was first recorded, theréfore, she has the superior right, and that the pretention of constructive notice arising from Mrs. Dunbar’s possession is not of the character to justify the inference of notice to Thatcher, the mortgagee.
The question resolves itself into two inquiries : First,' how the rights of the respective parties are affected by the registry laws; second, was Thatcher charged with constructive notice of the deed to Mrs. Dunbar ? By the 19th art., p. 309, Code, 1857, “ a conveyance of a freehold, or for a term of more than one year, shall not be good against a purchase for a valuable consideration, without notice, or any creditor, unless the same be acknowledged * * * or proved * * * * and lodged with the clerk of the probate court for record.”
The 21st art., p. 310 : “All bargains and sales, and all other conveyances whatever of lands, * * and all deeds of settlement upon marriage, wherein lands, money or other personalty shall be settled, * * * * etc., and all deeds of trust and mortgages whatsoever shall be void as to all creditors and subsequent purchasers for valuable consideration, without notice, unless acknowledged or proved, and lodged with the clerk of the probate court to be recorded.”
The 23d art., p. 110, makes every conveyance, covenant, agreement or other deed mentioned in the act (except deeds of trust and mortgages), which are acknowledged, or proved and delivered to the clerk * * * to be recorded, within three months after its execution, take effect and be valid from the date of its delivery; but deeds of trust and mortgages whenever they shall be delivered to the clerk to be recorded.
A recapitulation of the substance of these several sections may be thus stated: In order that a conveyance of lands may be good against a subsequent purchaser, or creditor, the deed must be recorded, or such purchaser or creditor must otherwise have [150]*150notice of it. If not lodged with the clerk for record, or notice otherwise given to the subsequent purchaser or creditor, it is as to them void.
Every conveyance, covenant, agreement or other deed (except deeds of trust and mortgages), lodged with the clerk for record, within three months from the date of execution, shall take effect and be valid from the date of delivery.
But mortgages and deeds of trust shall be valid from the date of deposit with the clerk for record. A purchaser for value who accepts a deed, with notice that his vendor has already conveyed the premises, is excluded from the benefit of the statute. So, also, is a creditor with like notice.
The lodging with the clerk of any of the instruments enumer* ated in the act for record (except deeds of trust and mortgages) within three months after execution, makes such instruments valid from date of delivery, so as to prevail against a purchaser or creditor who has acquired a right subsequent to the date of delivery, although prior to the time of deposit of the instrumen with the clerk. In other words, filing the deed with the clerk within the three months, makes the benefit of registration relate back to the day of delivery, so as to prevail against intermediate conveyances or incumbrances. Deeds of trust and mortgages however have no relation back to any act or date; and notice to subsequent purchasers and creditors begins from the time they are filed with the clerk for record. If the instruments to which three months are allowed for record are not registered within the time, they operate to give notice from the date they are lodged with the clerk.
Chancellor Kent, commenting upon the registry acts of this and the other states, says: “ If the deed be received within the time limited, it has relation back to the time of execution, and takes effect according to the priority of the time of execution, and not according to the priority of the registry.” 4 Kent, 532, top margin 457; Walker’s American Law, 385-6. The statute of Georgia is like ours, except that it allowed twelve months for [151]*151recording; in Anderson v. Dugas, 29 Ga., 442, it was said, if registered within the time, it related back to the execution. The same construction has been placed upon the Ohio statute. Northrup’s Lessee v. Brehmer, 8 Ohio, 392. See, also, McRaven v. McGruire, 9 S. & M., 48. The deed to Mrs. Dunbar was filed for record twenty days after its date and twelve days after it was acknowledged. In date it is four days older than Thatcher’s mortgage ; both were acknowledged and lodged for record on the same day.
Mrs. Dunbar’s deed being registered within the time, relates back and takes effect against subsequent purchasers and creditors to the day of its delivery to her. If the deed had been completely executed' and delivered on the 10th of January, its date then is older than the mortgage, and would prevail against it. But, whether delivered on that day or on the 18th of the month, when it purports to have been acknowledged, is a question of fact open to testimony. It is a question of fact which may be explained by testimony precisely on what day each instrument became complete by delivery, and if both were delivered on the same day, which is prior in point of time. If it shall become, necessary to inquire which was first filed with the clerk for record, testimony should be received on that point. If these views of the registry act are sound, as we think they are, after the most mature consideration of the subject, the deed to Mrs. Dunbar ought to have been admitted in evidence to the jury, and it was error to have excluded it.
Registration in legal intendment is conclusive notice to the parties to be affected by it. But if notice- of a prior unrecorded deed is otherwise communicated to the purchaser or creditor, then as to him it is not secret, and the prior deed shall prevail. Such was the construction placed upon the English statutes. Le Neve, v. Le Neve, 3 Atk., 646.
Such is the settled American rule. 4 Kent Com., 169; Henderson v. Downing, 24 Miss., 106; Cohen v. Carroll, 5 S. & M., 545; Perkins v. Swank, 43 Miss., 349. It is contended that aside [152]*152from the question of registration, Thatcher had notice of the conveyance to Mrs. Dunbar.
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Simrall, J.,
delivered the opinion of the court.
Both parties trace title back to the same, source. Mrs. Claiborne derives title through Mrs. Dunbar, to whom William Dunbar had conveyed the premises. Mrs. Holmes derives title by purchase, and a commissioner’s deed, under a decree foreclosing a mortgage executed by William H. Dunbar, to Jos. B. Thatcher. Mrs. Claiborne is the devisee of Mrs. Dunbar. Each party claims the superior right by reason of the respective conveyances of W. H. Dunbar. The question then is, Which is prior and superior, the absolute conveyance to Mrs. Dunbar, or the mortgage to Thatcher ? The deed to Mrs. Dunbar bears date the 10th of January, 1860, was acknowledged the 18th of January, 1860, and was lodged with the clerk for record the 30th of the same month. The mortgage to Thatcher was dated January 14th, acknowledged on the 18th, and on the same day lodged with the clerk for record. Mrs. Claiborne insists that her title, under the registry act, is valid against all subsequent conveyances or incumbrances of W. [149]*149H. Dunbar, from the date of his deed to Martha Dunbar. She also claims the benefit of constructive notice, by reason of the possession of the locus in quo by her devisee. Mrs. Holmes insists that the mortgage was first recorded, theréfore, she has the superior right, and that the pretention of constructive notice arising from Mrs. Dunbar’s possession is not of the character to justify the inference of notice to Thatcher, the mortgagee.
The question resolves itself into two inquiries : First,' how the rights of the respective parties are affected by the registry laws; second, was Thatcher charged with constructive notice of the deed to Mrs. Dunbar ? By the 19th art., p. 309, Code, 1857, “ a conveyance of a freehold, or for a term of more than one year, shall not be good against a purchase for a valuable consideration, without notice, or any creditor, unless the same be acknowledged * * * or proved * * * * and lodged with the clerk of the probate court for record.”
The 21st art., p. 310 : “All bargains and sales, and all other conveyances whatever of lands, * * and all deeds of settlement upon marriage, wherein lands, money or other personalty shall be settled, * * * * etc., and all deeds of trust and mortgages whatsoever shall be void as to all creditors and subsequent purchasers for valuable consideration, without notice, unless acknowledged or proved, and lodged with the clerk of the probate court to be recorded.”
The 23d art., p. 110, makes every conveyance, covenant, agreement or other deed mentioned in the act (except deeds of trust and mortgages), which are acknowledged, or proved and delivered to the clerk * * * to be recorded, within three months after its execution, take effect and be valid from the date of its delivery; but deeds of trust and mortgages whenever they shall be delivered to the clerk to be recorded.
A recapitulation of the substance of these several sections may be thus stated: In order that a conveyance of lands may be good against a subsequent purchaser, or creditor, the deed must be recorded, or such purchaser or creditor must otherwise have [150]*150notice of it. If not lodged with the clerk for record, or notice otherwise given to the subsequent purchaser or creditor, it is as to them void.
Every conveyance, covenant, agreement or other deed (except deeds of trust and mortgages), lodged with the clerk for record, within three months from the date of execution, shall take effect and be valid from the date of delivery.
But mortgages and deeds of trust shall be valid from the date of deposit with the clerk for record. A purchaser for value who accepts a deed, with notice that his vendor has already conveyed the premises, is excluded from the benefit of the statute. So, also, is a creditor with like notice.
The lodging with the clerk of any of the instruments enumer* ated in the act for record (except deeds of trust and mortgages) within three months after execution, makes such instruments valid from date of delivery, so as to prevail against a purchaser or creditor who has acquired a right subsequent to the date of delivery, although prior to the time of deposit of the instrumen with the clerk. In other words, filing the deed with the clerk within the three months, makes the benefit of registration relate back to the day of delivery, so as to prevail against intermediate conveyances or incumbrances. Deeds of trust and mortgages however have no relation back to any act or date; and notice to subsequent purchasers and creditors begins from the time they are filed with the clerk for record. If the instruments to which three months are allowed for record are not registered within the time, they operate to give notice from the date they are lodged with the clerk.
Chancellor Kent, commenting upon the registry acts of this and the other states, says: “ If the deed be received within the time limited, it has relation back to the time of execution, and takes effect according to the priority of the time of execution, and not according to the priority of the registry.” 4 Kent, 532, top margin 457; Walker’s American Law, 385-6. The statute of Georgia is like ours, except that it allowed twelve months for [151]*151recording; in Anderson v. Dugas, 29 Ga., 442, it was said, if registered within the time, it related back to the execution. The same construction has been placed upon the Ohio statute. Northrup’s Lessee v. Brehmer, 8 Ohio, 392. See, also, McRaven v. McGruire, 9 S. & M., 48. The deed to Mrs. Dunbar was filed for record twenty days after its date and twelve days after it was acknowledged. In date it is four days older than Thatcher’s mortgage ; both were acknowledged and lodged for record on the same day.
Mrs. Dunbar’s deed being registered within the time, relates back and takes effect against subsequent purchasers and creditors to the day of its delivery to her. If the deed had been completely executed' and delivered on the 10th of January, its date then is older than the mortgage, and would prevail against it. But, whether delivered on that day or on the 18th of the month, when it purports to have been acknowledged, is a question of fact open to testimony. It is a question of fact which may be explained by testimony precisely on what day each instrument became complete by delivery, and if both were delivered on the same day, which is prior in point of time. If it shall become, necessary to inquire which was first filed with the clerk for record, testimony should be received on that point. If these views of the registry act are sound, as we think they are, after the most mature consideration of the subject, the deed to Mrs. Dunbar ought to have been admitted in evidence to the jury, and it was error to have excluded it.
Registration in legal intendment is conclusive notice to the parties to be affected by it. But if notice- of a prior unrecorded deed is otherwise communicated to the purchaser or creditor, then as to him it is not secret, and the prior deed shall prevail. Such was the construction placed upon the English statutes. Le Neve, v. Le Neve, 3 Atk., 646.
Such is the settled American rule. 4 Kent Com., 169; Henderson v. Downing, 24 Miss., 106; Cohen v. Carroll, 5 S. & M., 545; Perkins v. Swank, 43 Miss., 349. It is contended that aside [152]*152from the question of registration, Thatcher had notice of the conveyance to Mrs. Dunbar. It is not pretended that Thatcher had positive knowledge of the' deed, but that he had knowledge of facts from which notice should be inferred. The alleged fact is, the possession by Mrs. Dunbar after her purchase. It is laid down in many cases that possession is notice, or a fact from which it may be inferred. 1 S. & M., 107; Wilty v. Hightower, 6 id., 345; Jones v. Loggins, 37 Miss., 546. The subsequent vendee, with notice, is a purchaser mala fide. Where the evidence, as in this case, is to fix the notice inferentially, the circumstances ought to be positive, distinct and emphatic. The notice must be clearly proved. McMechan v. Griffing, 3 Pick., 154. The testimony on this point was that Mrs. Dunbar was in possession of part of the Mount Yernon plantation, the field east of the public road, the land involved, in 1859, as tenant or lessee of W. H. Dunbar. Her possession in 1859 could only be notice of her title, as tenant. Gould the neighborhood or the public infer more? On the 10th of January, 1860, the date of her deed, and only ten days after her tenancy had expired - — at that date her occupancy would be referred to the title under which she originally entered. Not more than ten or eighteen days had elapsed when she ceased to be lessee and became tenant in fee. When Thatcher took his mortgage the occupancy was continuous. From the circumstances the inference would not be just, that she had purchased the land and held the fee. The transcript of the proceedings and decree in the foreclosure suit against W. H. Dunbar and wife, and the deed of the sheriff, as commissioner, to Mrs. Holmes, were admitted in evidence against the objection of the defendant. It is legitimate, under our practice, for either party to select the order of the introduction of testimony unless that which is offered is dependant for competency upon the proof of some precedent fact. These judicial proceedings, and the sale under them, constituted the foundation of the plaintiff’s title. If they were rejected the plaintiff would be cut off from the presentment and consideration of her title. To allow them in evi[153]*153dence did not imply that title conferred a complete title. The competency and admissibility of testimony is a different consideration altogether from its value, or sufficiency to sustain the issue. The question was, whether it was relevant and tended to sustain the plaintiff’s case. It was competent to show that the title which passed to the mortgagee was transfered to Mrs. Holmes. But it was still open to inquiry and determination by testimony, whether the mortgage had been executed and delivered before the deed to Mrs. Dunbar, and which had been first lodged for record. Inferences or presumptions may be drawn from the date of the deed and acknowledgment as to the time of delivery. But the exact time may be established by proof. If no testimony were adduced, except the deeds themselves, and the indorsements upon them, a presumption would arise as to the time of their respective deliveries. The acknowledgment and subsequent registration is presumptive, but not conclusive evidence of delivery. Ingraham v. Grigg, 13 S. & M., 22; Bullitt, Miller & Co. v. Taylor, 34 Miss., 708. See Kane v. Mackin, 9 S. & M., 387. These records were admissible on the same grounds that the judgment under which a sheriff sells is admissible for the purchaser at his sale. Both tend to show that the title of the respective defendants passed by the sale and officer’s deed. The purchaser, however, may be required to show what was the title of the mortgagee or judgment debtor. . There was no error in the admission of these papers. For the error hereinbefore indicated the judgment is reversed and cause remanded.