213 N.W. 599 | Iowa | 1927
Henry Wendt and Ida Wendt are husband and wife. The American State Bank of Walnut was closed on May 23, 1923. At that time, the indebtedness of Henry Wendt to the said bank was approximately $12,000, represented by three notes. The said notes had been deposited by the American State Bank as collateral security, with the appellee as trustee. On the 27th day of July, 1923, the said notes were renewed by the execution of the notes in question, which were signed by both of the defendants, and at said time, the mortgage in question was given, to secure said notes, upon certain lands *973 belonging to the said Henry. The notes were executed at the office of the American State Bank, which was then in the hands of a bank examiner, and the notes and mortgage were drawn up by said examiner. The notes were afterward delivered to the appellee, and the original notes were turned over to the appellants. It is the contention of the appellants that there was a material alteration made in the notes after they were signed. The notes are three in number, and for various amounts, the aggregate being more than $12,000. Each of said notes bears date July 27, 1923, and each on its face purports to be due on or before July 27, 1925. The notes bear 7 per cent interest, and said interest is, by the terms of the notes, payable semiannually. It is the contention of the appellants that the said notes, as originally executed, were not made payable "on or before," and that the interest was payable annually, instead of semiannually, and that there has been a material alteration in said notes, by the insertion of the words "on or before," and of the prefix "semi" before the word "annually." The original notes have been certified to this court for examination. They are on a printed form. The words "on or before July 27, 1925," are written in said notes with a pen. Also, preceding the printed word "annually" in the notes appears the prefix "semi," written with a pen. The mortgage, which was executed contemporaneously with the notes, was also on a printed form, the blanks were filled in with a typewriter, and the prefix "semi," in typewriting, precedes the printed word "annually" in said mortgage.
It is now the established rule in this state that, even though an alteration is apparent upon the face of a written instrument, it does not raise a presumption that such alteration was made after delivery, but the burden is upon the party alleging the material alteration in such written instrument to show that it was made after delivery of the instrument. In the recent case ofMonona County v. Gray,
"It is the settled rule in this state that an alteration apparent on the face of an instrument raises no presumption that it was made after delivery, and that the burden is upon the party alleging a material alteration to establish that it was made after delivery of the instrument. Hagen v. Merchants Bankers'Ins. Co.,
In the Monona County case, we expressly overruled the case ofKauffman v. Logan,
The conclusion of the trial court upon the fact question meets with our approval, and we concur therein. We find that the appellants have failed in their defense of a material alteration, and the judgment in favor of the appellee must be, and it is, —Affirmed.
EVANS, C.J., and STEVENS, VERMILION, and KINDIG, JJ., concur.
