104 Ala. 570 | Ala. | 1894
This is an action of ejectment. The demise relied upon is laid in John Swan and John A. Billups, trustees, &c. The defendants in respect of a part of the land sued for — the northwest quarter of the southeast quarter, and the southwest quarter of the southwest quarter of section 23, township 11, range 6, lying in Etowah county, Alabama — claimed title through a deed from said Swan and Billups to Shaw, bearing date March 13, 1878, and title in Swan and Billups having been shown by plaintiff, they offered this deed in evidence. Its introduction was objected to by the plaintiff on the ground “that it shows on its face that it has been mutilated, and upon the further ground that the clause, ‘minerals reserved’ in the "deed has been erased by a pen.” This objection was overruled, the deed was admitted, plaintiff was cast as to this land, and reserving exceptions to this ruling and also to the judgment, which was without jury, now appeals to this court.
The original deed from Swan and Billups to Shaw accompanies this record for our inspection. It is a printed form prepared especially for conveyances by Swan and Billups, as trustees of the Alabama and Chattanooga railroad lands. In the body of this deed are four erasures of printed matter. It was in the contemplation of the draughtsman of this form that the lands would be sold for cash in part and on credit for the balance, and that purchasers would execute their notes for the deferred payments. Hence in the form there is a reference to notes executed by the purchaser. But Shaw paid cash in full as is shown by the recitals, and that part of the deed referring to the notes is erased. Again, the form contemplates a sale to two or more persons, and in it there is a reference to the purchasers, “or either of them.” Shaw was the sole purchaser in this instance, and, therefore, the words, “or either of them,” are erased. The other two erasures are of the words “min
Whether the Shaw deed should have been received at all in evidence is another question. That it should not have been received as evidence of defendant’s title to the minerals, in the absence of sufficient explanation on his part of the erasures of the words “minerals reserved,” is, of course, clear, because prima facie, the alterations in question being, upon the considerations to which we have adverted, of a suspicious character, evidenced by the face of the instrument, the deed, until the suspicions were removed by satisfactory explanation, was to be taken, if admissible at all, as if it contained the erased words which reserved title to the mineral deposits to the grantors. But whether the paper was evidence of Shaw’s title to the land exclusive of the minerals is a more difficult question. It is a familiar law that the effect of an unauthorized alteration of an instrument in a material part by one not a stranger to it, after its execution, ordinarily is the destruction of the paper, in such sort that no rights under it can be asserted, and no rights between the parties can be proved by it. — Sharpe v. Orme, 61 Ala. 263 ; Hill v. Nelms, 86 Ala. 442 ; Barclift v. Treece, 77 Ala. 528 ; Anderson v. Bellenger, 87 Ala. 334; Montgomery v. Crossthwait, 90 Ala. 553; Saint v. Wheeler & Wilson Manf’g Co., 95 Ala. 362 ; Hollis v. Harris, 96 Ala. 288. A paper so altered is no longer the paper which was signed by the party sought to be charged, and he can not be held to the obligation originally evidenced by it. This is true in respect of all executory instruments : their destruction in this way is the destruction of the rights they were intended to'secure and evidence. There is, however, a well recognized distinction' in this connection between this class of instruments and those which merely evidence a completed and fully executed transaction, and even between those parts ' of the same instrument which are as to some matters executory and as to others executed , in the sense of being
To the other part of the land involved here, the defendant claimed title by adverse possession under color and claim of title for more than ten years before suit brought. We have carefully considered the evidence of such possession adduced on the trial, and upon it we concur with the trial court in finding the defense made out, and affirm the judgment in favor of plaintiff and in favor of defendant in so far as it relates to lands not mentioned in the Shaw deed.
As to the lands in suit mentioned in the Shaw deed, the judgment will be reversed and judgment will be
One-half of the costs of appeal in this court and the court below will be paid by each of the respective parties. Affirmed in part, reversed and rendered in part.