101 Va. 733 | Va. | 1903
delivered the opinion of the court.
The bill in this case was filed in the Circuit Court of Augusta county against the widow, the administrator, and the heirs at law of B. IST. Wallace, deceased, to collect the money alleged to be due upon a bond which is in the words and figures following:
“$1,100.00. June 23rd, 1879, 18.
“One day after date we promise to pay to the order of D. Bashaw or executor or heirs, &c., one thousand and one hundred 00-100 dollars at home without defalcation value received. And without relief from the Homestead Exemption law or any other.
“Statutory laws as to this obligation.
“As witness our hands and seals this day and date.
“SAM’L D. WALLACE (Seal),
“B. N. WALLACE (Seal).'
-“No. 10.
“Due June 24th, 1879.”
The validity of this bond is pnt in issue by answers of the defendants, supported by the affidavit of one of them. We have no doubt that Samuel D. Wallace executed the bond to Bashaw for the sum mentioned in the paper above set out, and that R. 1ÑT. Wallace signed it as his surety. The only question which we deem it necessary to consider is whether certain alterations which appear to have been made in it, so far detract from the credit of the paper as to impose upon the party holding it the duty of making satisfactory explanation with respect to such apparent alterations upon the pain of having the instrument rejected as evidence in his behalf.
When the bond in question was prepared, a printed form Was used in which the figures “18” in the upper right-hand corner are left undefaced. The comer of the paper has been destroyed, apparently from the rubbing and abrasion incident to keeping a paper a long time folded in a pocket-book. The two right-hand figures of the date are so blurred as to be illegible. Their present appearance, or so much of them as remains, suggests the idea that they are written over the original date, but what that original date was it is impossible to say with any degree of confidence. To the left of these figures there are the figures “1879,” wholly written, making the date now read “June 23rd, 1879.” At the bottom of the note there now appears the word “due,” in print, followed in manuscript by “June 24-th, 1879,” which makes the due date correspond with the date of the bond, which was payable one day after date. The two last figures, “7” and “9,” of the due date also appear to have been changed. There is a faint appearance under these two figures of other numerals, but what they were is again a mere matter of conjecture. In other words, nothing more can be predicated from an inspection of the instrument than that in the two particulars mentioned there has been an alteration of
The law upon the subject of alterations in instruments is thus stated by G-reenleaf, at section 564: “If, on the production of an instrument, it appears to have been altered, it is incumbent on the party offering it in evidence to explain this appearance. Every alteration on the face of a written instrument detracts from its credit, and renders it suspicious; and this suspicion, the party claiming under it is ordinarily bound to remove.”
And 2 Minor’s Inst. 740, with respect to this subject, says: “Ho party to any writing is allowed to tamper with it by any alterations material, or made with bad intent, without subjecting himself to the just penalty of thereby avoiding the instrument altogether, so far as its future effect is concerned. When any circumstances of suspicion occur, such as a different handwriting, different ink, etc., it must, in general, be explained, in order to make the writing available.” See, also, Consumers’ Ice Co. v. Jennings, 100 Va. 719, 42 S. E. 879, and authorities there cited.
It appears that Bashaw paid as surety for S. D. Wallace a judgment of $689,90, with interest from December, 1872. The payments upon this judgment were completed in June, 1878, and, considering it as a fact proved that the money thus paid by Bashaw as a surety for S. D. Wallace was the consideration for the bond in controversy, it appears that Bashaw came to the rescue of Wallace when he was in much need of assistance; that he became his surety; that he paid the debt; and that S. D. Wallace, with B. H. Wallace as his surety, executed the bond in controversy to reimburse Bashaw for the money thus allowed. It appears further that Bashaw was a most indulgent
The evidence proves, and it is conceded, that Dr. Bashaw was a man of high character and unimpeachable integrity. When this bond was offered in evidence, Dr. Bashaw was not a competent witness. Wallace being dead, Bashaw’s lips were closed.
As we have seen, however, the consideration upon which this bond rests arose in June, 1878. If the bond was then executed—and it would be a violent presumption to suppose that it was executed at any earlier period—twenty years, which was at that time the limitation upon sealed instruments, would have expired in June, 1898; but, B. TT. Wallace being then dead, the right of action was extended for one year (see section 2919 of the Code of 1887, as amended by Acts Assem. 1895-’96, p. 331, c. 292), so that the statute did not attach until the 23d of June, 1899. If, therefore, the original date of the bond was in June, 1878, the alteration was immaterial, for this action was instituted in April, 1899, about two months before the bar of the statute applied.
' Considering all the evidence in the case, we have reached the conclusion that the Circuit Court erred in rejecting the bond. Its decree must, therefore, be reversed, and the cause remanded for further proceedings to be had in accordance with this opinion.
Reversed.
