Bacon v. Hooker
177 Mass. 335
Mass.
1901
Check Treatment
Holmes, C. J.

This is an action of tort with counts for a trespass upon the plaintiff’s close, for a trespass to the plaintiff’s person, and for the conversion of a piano. The defendants justified under a mortgage of chattels, including the piano, con*337ditioned among other things against moving the goods from the place where they were at the time, and proved a breach of the conditions. The plaintiff offered evidence that the defendants had added the description of various articles to the granting clause of the mortgage without the knowledge of herself or her husband. The jury were instructed that if the defendants had made a material alteration in the mortgage without the knowledge of the other parties the mortgage was void and the defendants’ servant had no right to take the piano, and that if in doing so he had used force to the person of the plaintiff, the defendants were liable. The jury found for the plaintiff, and the defendants come here on exceptions which we agree with the judge below were properly saved. Other exceptions were taken which are not argued, and which we therefore assume to be waived.

We must take it that the alteration was material, although it is fair to observe that the mortgage covered all the personal property in the plaintiff’s house at the time of its execution, and that SO'far as appears the defendants may have written in the words because they rightly or wrongly supposed that the articles enumerated were covered by the general language already there. The alteration was a cancellation of the deed, having the same effect that tearing off the seals would have had. This rule comes down to us from a time when the contract contained in a sealed instrument was bound so indissolubly to the substance of the document that the soul perished with the body when the latter was destroyed or changed in its identity for any cause. As applied to deeds the rule has an unimpeachable pedigree, and is elementary law.

However, in modern times, at least, it is settled that, so far as a deed passes an estate and is not merely executory, its executed effect is not disturbed by a subsequent alteration ; and the question has been raised as to how this qualification will operate in the case of a mortgage. Kendall v. Kendall, 12 Allen, 92. In that case, the change consisted in the addition of the name of the mortgagor’s wife to a mortgage of land, and the court remarked that it did not appear by whom the alteration was made, and that nothing was done which, if genuine, would have affected the interest of the mortgagor. The wife was dead. It was held that evidence of the change properly *338was rejected in an action to foreclose brought against the husband. On the other hand, it was decided in Harrison v. Owen, 1 Atk. 520; S. C. West, Ch. 527, that if a mortgagee cancels a mortgage by tearing off the seals, it is as much a release as cancelling a bond, although it does not revest the estate in the mortgagor. The same principle clearly would govern in case of alteration of both bond and mortgage by the mortgagee. Waring v. Smyth, 2 Barb. Ch. 119. And it has been applied unanimously, so far as we know, in this country, where the alteration was in the mortgage alone, in the case of a mortgage of land, at least so far as rights under the mortgage were concerned. McIntyre v. Velte, 153 Penn. St. 350. Marcy v. Dunlap, 5 Lans. 365. Powell v. Pearlstine, 43 S. C. 403, 409. Coles v. Yorks, 28 Minn. 464. Pereau v. Frederick, 17 Neb. 117. Johnson v. Moore, 33 Kans. 90. Cutler v. Rose, 35 Iowa, 456. See 1 Jones, Mortgages, (4th ed.) §§ 94, 95; 2 Am. & Eng. Encyc. of Law, (2d ed.) 188, 189, sub v. “ Alteration of Instruments”; Fisher, Mortgages, (4th ed.) 749 ; 2 Robbins, Mortgages, 1402. In Hollingsworth v. Holbrook, 80 Iowa, 151, a case like the one at bar, it was held that after the alteration the mortgagee could not justify taking possession of the property covered by it to foreclose.

But whether all the cases cited were decided rightly or not, and if we assume in favor of the defendant that he had a title in the chattels which became absolute at law upon breach of condition, still without aid from the deed as an executory instrument the defendants had no right to enter the plaintiff’s premises for the purpose of taking the goods. That seems to be the result of McLeod v. Jones, 105 Mass. 403. See Smith v. Hale, 158 Mass. 178, 183; Lambert v. Robinson, 162 Mass. 34, 37. In other words, in addition to title to the goods, the defendants must make out an irrevocable license to enter the plaintiff’s close. The license is not an estate which was granted by the mortgage when the deed was executed, it is a mere permission which does not operate until the time comes. Such a permission is executory, and depends upon the continued operation of the deed. It follows that the exceptions must be overruled, but we are far from thinking the case so free from difficulty that the plaintiff should have double costs.

Fxeeptions overruled.