majority">Per Curiam.

On the 7th day of January, 1857, Patrick Treehan and wife executed a mortgage to William W. Woodward upon a tract of land. The mortgage was duly acknowledged and recorded. William B. Allen claims that the same land was conveyed to him on the 5th of January, two days prior to Woodward’s mortgage. The Court below held that the land was not so conveyed; and whether that holding was erroneous is the only question. Nothing is disclosed as to the transaction in which, or the consideration upon which, Allen got the land. Allen testified that the deed was sent to him on the. 5th of January, from Indianapolis; see Branham v. Bradford, 17 Ind. 47; but that it was not acknowledged, and he immediately returned it to the maker at Hacine, Wisconsin, where it was witnessed and acknowledged *149on the 21st of the same month, and then sent back to him at Anderson. Now, did Allen accept the deed as delivered on the 5th or not ? The Court inferred that he did not. This Court inclines to the opinion that the inference is that he did, and, hence, sent it to be perfected and returned. On another trial more evidence may be given.

W. li. Pierce and II. D. Thompson, for the appellant.Ii. T. St. John, for the appellee.

Reversed with costs, and remanded for another trial.

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