51 Miss. 311 | Miss. | 1875
delivered the opinion of the court.
The bill by which this case was instituted is to some extent complex. Its main object was to obtain a decree against the husband of complainant for a support, on the ground of desertion. In aid of this object, the bill charged a fraudulent disposition of the property of the husband, and sought to set aside or avoid a deed of trust of real estate and a sale thereunder, and to enjoin summary proceedings under the code, to dispossess the complainant, who was occupying a part of the premises involved. On the hearing, the fraud charged was conclusively disproved, and the case turned upon the effect of an interlineation appearing in the face of the record of the deed of trust. The following facts will present the question to be determined by this court: J. O. Hendricks was county treasurer of Yalabusha county. On February 13, 1873, he loaned $1,800 to B. H. Collins, one of the respondents herein, which sum was a part of the school fund of that county, for the security of the payment of which, Collins executed his note of that date, payable on the first day of December, thereafter, to Hendricks, as such county treasurer, or bearer, and on the same day, for further security, gave a deed of trust on the real estate therein described and the same involved herein. This conveyance was to N. P. Eagan, trustee, to secure the payment of the note to Hendricks, county treasurer, at its maturity and was acknowledged on the day of the date, to wit: February 13, 1873. It was recorded March 3, 1873, in the proper office
“ This cause coming on to be heard this 13th day of October, 1875, the same being the 3d day of October term, 1875, of this court, upon bill, answer and proofs and agreement of parties thereto, to this effect, that the injunction in this cause be dismissed for want of a bond, and that said cause be tried on said bill, answer and proofs and arguments of counsel, and the defendants appearing in open court and admitting as evidence, by consent of all parties thereto, that the deed of trust filed with the papers in this cause, executed by B. H. Collins to N. P. Eagan, as trustee, for the use and benefit of J. O. Hendricks, was, in July or August, 1873, altered and interlined, by adding on the face of said deed of trust, “the further sum of three hundred dollars,” to the original amount of said deed of trust, which alteration and interlineation was done after the woman’s homestead law had passed, to wit: the act approved April 18, 1873, which alteration and interlineation was done by the consent of the said B. H. Collins, N. P. Eagan and J. O. Hendricks, the parties whose names appear on the face of the said deed of trust, and that the parties to the said deed of trust appeared before the clerk of this court immediately after said alteration and interlineation, and acknowledged that the same was done by the consent of all parties thereto, and had the record of said deed altered and interlined so as to show the same, and it appearing to the court that said alteration and interlineation was a material alteration of said instrument, and being done by the consent of the parties, whose*317 names appear thereto, that said instrument operates as a new contract or deed of trust, taking effect from the date of interlineation, and that said deed of trust affects complainant’s, Mrs. Emma F. Collins’ homestead right, as secured to her by the act approved April 18, 1873, for the benefit of married women, and that the same is, as to her, inoperative and void, so far as her homestead right in the property conveyed by the deed of trust is concerned.” It is then “ ordered, adjudged and decreed that said deed of trust is void and inoperative as to complainant’s homestead right” in the property therein described. The decree directs that Mrs. Collins be “quieted in the possession ” of said property, so far as the interest of the parties to said deed of trust and the defendants, B. H.' Collins, N. P. Bagan and J. O. Hendricks are concerned, touching her homestead right to said property, and that her homestead interest therein “ is hereby declared good and valid against said deed of trust in every respect.”
From that decree the case comes to this court; errors are assigned as follows: 1. That the chancellor erred in deciding that the alteration or interlineation of the deed in trust was a material alteration. 2. In deciding that the alteration or interlineation of the deed of trust made the same operate as a new contract or deed of trust, taking effect from the date of interlineation; and, 3. In deciding that said deed in trust does not affect complainant’s homestead right, and that the same is to her inoperative and void so far as her homestead rights are concerned.
In the consideration and determination of this case, it is especially material, in the light of the authorities, to fix upon the exact facts presented by the record. The statement of the final decree will be found to be vague generally and defective. Eeferring to the record, p. 27, Ex. A, filed with the answer, the precise interlineation is in these words: “Also one note for $300, due March the 24th, A. D. 1873.” This follows the statement in deed of the note of February 13th, and except these words, no alteration or change appears as to parties, the prior note, the land embraced, the terms and. conditions, da¡te and acknowledgment;
Counsel cites 1 Greenl. Ev., § 568 a, note 9; Hudson v. Revett, 5 Bing., 368; West v. Steward, 14 M. & W., 47; Hartley v. Manson, 4 M. & G., 172; Story on Bailmentf, 55; Byles on Bills, 478, 9, 10, Miller v. Stewart, 5 Cond. (U. S.), 727; Master v. Miller, 1 Smith Lead. Cases, 963; Woolley v. Constant, 4 Johns., 54; Speake v. United States, 9 Cranch, 28; Barrington v. B’k of W., 14 S. & R., 405; Stephens v. Graham, 7 id., 505; Smith v. Weld, 2 Barr, 54; Willard v. Clarke, 7 Metc., 435; Hills v. Barnes, 11 N. H., 395; Humphreys v. Guillow, 13 id., 386; Penny v. Corwithe, 18 Johns., 499; Tompkins v. Corwin, 9 Cow., 255. Some of these cases refer to notes, bills and contracts, not under seal; some to bonds and contracts under seal; and others to deeds or conveyances of lands; between which the authorities assert an important distinction in the application of rules touching this alteration. The deed in 18 Johns., supra, was altered after its execution, but before delivery, by the erasure of the name of the grantee, and the insertion of another. This was done in the presence of all the parties and the witnesses. In 5 Bing., supra, the deed was delivered with blanks to be subsequently filled. The court, to sustain the conveyance, indulged in the fiction of a redelivery.
The note to § 568 a, 1 Greenl. Ev., merely declares the general
Cleaton v. Chambliss, 6 Rand., 86, was upon a bond which had been altered, and the court proceeded upon the theory that an acknowledgment and redelivery were necessary. In Coit v. Stark-weather, 8 Conn., 289, the deed had been delivered, acknowledged and recorded, after which, by consent, the word “ Jr.” was added to the name of the grantee in the original deed. It was then taken to the clerk, by whom the same word was inserted in the record of the deed, thus, that case, and the one at bar are strikingly sim
It is declared in Moore v. Bickham, 4 Bin., 1, that when a deed has been acknowledged before a magistrate, appointed by law to take and certify the acknowledgment, in order that the deed may be recorded, the parties have no right to make the most trifling alteration in it. They have most certainly no right to make a material alteration without a redelivery, and a reacknowledgment, and this is the effect of the Code, §§ 2302, 2304, which require the conveyance of lands to be by writing, signed, sealed', and delivered, and-as against third persons, to be acknowledged and recorded, though as between the parties, the acknowledgment and registration are unnecessary.
In Speake v. U. S., 9 Cranch, 28, Livingston, J., says: “After perfecting a deed in one form, no material alteration should be set up, unaccompanied by a new delivery, and a note or memorandum thereof.” So in this case, the arrangement was probably valid, as between the parties; this arrangement may be stated to have been equivalent to a verbal or written stipulation, pursuant to which the clerk might have entered in the margin of the record that the parties had agreed to a lien upon the land in the deed of trust for the $300, secured by the note of March 23, 1873. Inter partes, this would doubtless be binding, but would not displace intervening rights. Such is about the scope and effect of the “ attempted ” arrangement of these parties, and the illustration suggested indicates the view taken of this case (see Woolley v. Constant, 4 Johns., 54, 60).
Modern cases are uniform, that alterations of written instruments by consent of all parties aie valid; they agree, also, that upon this subjeet, liberality has taken the place of strictness. And the late doctrine is, that a sensible view is to be adopted in the determination of this class of cases. As far as consistent the in
Decree reversed, and cause remanded with direction to enforce the deed of trust for the $1,800.