18 Vt. 466 | Vt. | 1846
The opinion of the court was delivered by
In this case the court decided, upon the evidence, that the plaintiff was not entitled to recover. It appears to us, that the case should have been submitted to the jury; and, if the facts were as claimed by the plaintiff, he was entitled to recover.
The plaintiff claimed a right to re-enter, on being denied the rights secured to him by the stipulations in the lease. These rights were secured to him by that clause in the lease, which is erased. In this view, alone, it was important to have that fact passed upon by the jury.
But, moreover, if this erasure was made by Johnson, it destroyed all his future rights under that lease. And although it might not divest an estate already vested, and might not have operated on his acts committed before the alteration was made (questions, however, which are not now to be decided) in odium spoliatoris he must be considered as having destroyed the evidence of his title fraudulently and thereby lost all his subsequent claim under and by virtue of the same, either to retain the possession, or preclude the plaintiff from entering on the premises leased.
In the case of Chesley v. Frost, 1 N. H. 145, it was decided, that, if a grantee in possession fraudulently make a material alteration in a deed, he cannot avail himself of such deed in evidence, nor supply it by parol proof, — limiting its éffect prospectively, so as not to divest an estate already vested. In Withers v. Atkinson, 1 Watts 236, such an alteration was held to destroy the deed, as to the party altering it, and to deprive him of all benefit from the covenants, — treating it as in the case in New Hampshire. And in Lewis v. Paine, 8 Cow. 71, it was said, that, if a party have no other evidence but an altered deed, he cannot recover thereon, having by his own act destroyed the evidence of his demand. The principle recognized in these cases we think is correct, and would have had a decisive effect in this case against the defendants, if it had been established by the evidence.
Again, the plaintiff had a right to enter and take away the wood, if it was sold to him by Johnson, as he contended. If the plaintiff
The judgment of the county court is therefore reversed.