49 Neb. 443 | Neb. | 1896
February 14, 1877, James Chamberlain owned a quarter section of land in Dixon county and on said date mortgaged it to the New England Mortgage Security Company to secure a note due February 14,1882, with interest thereon, payable annually. The note and mortgage provided that if Chamberlain made default for a certain number of days in the payment of any installment of annual interest when due the holder of the mortgage debt might declare the entire mortgage debt due, and upon
1. One link in Dorsey’s chain of title is the deed to Yiola Wigton from the mortgagors, Chamberlain and wife, made by Charles L. Parke, their said attorney in fact. This deed was executed by the attorney in fact in the state of Iowa and there acknowledged before a notary public, who attached his official seal to his certificate of acknowledgment. The deed recited: “Know
“State oe Iowa, \ Iowa County. / ss‘
“On this 22d day of November, 1878, before me, Ira S. Richards, a notary public in and for said county, personally came Charles L. Parke, attorney in fact for James Chamberlain and Julia, husband and wife, to me personally known tó be the identical person who signed the above deed as grantor, and acknowledged the same to be his voluntary act and deed.
“Witness my hand and seal notarial the date last above written. Ira S. Richards,
“Notary Public, Ia. Co., Ia.”
The original power of attorney from Chamberlain and wife to Parke was read in evidence, but there was no testimony, other than that afforded by the deed and its acknowledgment, offered on the trial, that Parker, the attorney in fact, executed the deed.
It is now insisted that the acknowledgment to the deed is so defective as not to entitle the deed to be recorded, — not to entitle it to be read in evidence, — without parol proof that Chamberlain and wife through their attorney in fact, Parke, actually executed the deed, and that as there is no such testimony in the record the decree cannot stand. It is argued that the acknowledgment is simply the personal acknowledgment of Charles L. Parke; that it should have read “personally appeared James Chamberlain and Julia Chamberlain, his wife, by
' 2. The deed of the attorney in fact to Viola Wigton as first drawn described the land as being in section twenty-one (21), township thirty-one (31), and range three (3).. A pen was subsequently drawn through the word “three” and the word “four” substituted therefor. The evidence does not show when or by whom this erasure or alteration was made; and a second argument of the appellants is that the presumption of law is that the erasure or alteration was made after the execution and delivery of the deed and that therefore the district court had no right to consider this deed as evidence. The question presented is this: An instrument in writing bearing on its face a material and obvious erasure, alteration, or interlineation is offered in evidence; if otherwise competent, does such alteration or erasure render it incompetent evidence until explained? The solution of this question must depend upon the answer to be given another, namely, where a written instrument shows upon its face a material and obvious alteration or erasure, does the law presume such alteration was made before or after the final execution and delivery of the instrument? If the presumption is that the alteration or erasure was made after the execution and delivery of the instrument, then it cannot go in evidence until such alteration or erasure be explained. On the other hand, if the presumption of law be that such alteration or erasure was made before the final execution and delivery of the instrument, then it may be admitted in evidence in the first instance. Unfortunately there is a hopéless conflict among the authorities on this question. We are not able to say on which side is the weight
Gooch v. Bryant, 13 Me., 386, was an action on a note which showed upon its face a material and obvious alteration, but when or by whom made was not disclosed by the evidence. The trial judge ruled that the presumption was that the alteration was made before the execution and delivery of the note. Exception was taken to this ruling and the supreme court of Maine, speaking to the point, said: “There was no other evidence of the alteration of the note than what arose from inspection, from which it appeared that one of the figures in the date had been altered. Of the fact there could be no doubt; but the more important inquiry was when it was done. If altered after the signing and delivery it would vitiate the note; if before, it would not. As to the time, no evidence was offered by either party. The alteration was not in itself proof that it was done after the signature. It might have been made before. If the alteration was prima facie evidence that it was done after, it must be upon the ground that such is the presumption of law. But we do not so understand it. It would be a harsh construction, exposing the holder of a note, the date of which had been so altered as to accelerate payment or to increase the amount of interest, to a conviction of forgery, unless he could prove that it was done before the signature. It would be to establish guilt by a rule of law
Paramore v. Lindsey, 63 Mo., 63, was a suit upon a promissory note by an indorsee. The defense was that the note was altered after it was signed and delivered. The alleged alteration consisted in the erasure in the printed form of the words “ after maturity.” The effect of this was to make the note draw interest from date. The trial court instructed the jury that the presumption of law was that the erasure or alteration appearing on the face of the note was made either prior to or at the time of the execution and delivery of the note; and this instruction on exception was sustained by the supreme court.
In Little v. Herndon, 77 U. S., 26, the court said: “A minor objection below was to the admission of one of the patents on the ground of an erasure. The court left the question to the jury, which was quite as favorable a ruling as the defendant could ask. In the absence of any proof on the subject the presumption is that the correction was made before the execution of the deed. * * * A deed cannot be altered after it is executed without a fraud or wrong; and the presumption.is against fraud or wrong.”
In Bank of Cass County v. Morrison, 17 Neb., 341, it was held: “Where a material alteration is apparent on the face of a written instrument offered in evidence, the question as to whether such alteration was made before or after the execution and delivery of such instrument is, in the last instance, one for the jury or trial court. It is like any other fact in the case, to be settled by the trier or triers Of facts. Generally in such case the instrument may be given in evidence, and may go to the jury or trier of fact, leaving the parties to such explanatory evidence of the alteration as they may choose to offer.” This case was followed in Goodin v. Plugge, 47 Neb., 284. These
A re-examination of the question leads us to the conclusion that the decision in Johnson v. First Nat. Bank, supra, is erroneous, and. it is therefore overruled; and so much of the case of Courcamp v. Weber, supra, as follows Johnson v. First Nat. Bank is also overruled, and we accordingly hold that where a written instrument shows upon ’ts face a material and obvious alteration, the presumption of law is that such alteration was made before the instrument was finally executed and delivered; and such instrument is not rendered incompetent evidence solely because such alteration appears therein. (See Stough v. Ogden, 49 Neb., 291.) The question is a vexed and difficult one, and perhaps as many authorities, and of as great respectability, may be cited on one side thereof as upon the other; but the principle is elementary that the presumption of law is always in favor of honesty and upright conduct, and upon this principle we rest the decision of the point as we have made it and overrule Johnson v. First Nat. Bank and Courcamp v. Weber, supra, sincerely believing in the correctness of the conclusion reached and assured at least that we are now consistent. The district court, then, did not err in considering and weighing as evidence the deed from the attorney in fact to Viola Wigton. But again, we cannot say that the court was wrong in concluding from the evidence before
3. Another link in the appellee’s chain of title was a deed from Yiola Wigton and husband to one Burton. This deed was not witnessed, and no evidence other than that afforded by the deed itself was offered to show that Wigton and wife in fact executed it. A third contention of appellants is that the decree lacks evidence to support it, as the court had no right to consider the deed as evidence. The deed in question was executed in the state of Iowa, February 28,-1879, acknowledged before a notary public in that state, who attached his seal of office to his certificate of acknowledgment. Deeds which are executed in this state conveying lands situate in this state are by the law required to be witnessed. (See Compiled Statutes, ch. 73, sec. 1.) When this deed was executed sections 4 and 5 of chapter 61, General Statutes, quoted above, were in force. Construing these statutes in Green v. Gross, 12 Neb., 117, this court held: “When a deed is made in another state the certificate of acknowledgment of a notary public thereto, duly attested by his official seal, entitles such deed to be recorded without further authentication.” (Hoadley v. Stephens, 4 Neb., 431; Galley v. Galley, 14 Neb., 174.) The deed having been executed in another state for lands situate in this state, and
4. The mortgage made by Chamberlain and wife to the Mortgage Security Company matured by its terms February 14,1882, but by reason of Chamberlain’s default in paying his interest was, in accordance with the provisions of the mortgage, declared to be and became due December 9, 1878, and suit was brought to foreclose it on said last date. The sale had under the decree was confirmed December 16,1879. The present suit was brought November 8, 1888. A final contention of the appellants is that as more than four years intervened between the date the appellee’s cause of action accrued and the bringing of this suit, it is barred by the statute of limitations. To sustain this contention we are cited to Parker v. Kuhn, 21 Neb., 413, where it was held that “an action by a junior incumbrancer to redeem land sold at execution or judicial sale, being an action for relief other than those specifically mentioned, must be brought within four years after the cause of action shall have accrued.” But this case is not in point here. The appellee is not a junior incumbrancer. He is the owner of the fee. An action by an owner of the fee of real estate to redeem his land from a mortgage thereon which has been foreclosed, and to which foreclosure proceeding such owner was not a party or, if a party, not served with process, may be brought at any time within ten years after his cause of action accrues. (Code of Civil Procedure, sec. 6; McKesson v. Hawley, 22 Neb., 692.)
But the serious question here is, when did appellants’ cause of action accrue? Did it arise'when the mortgage debt matured or was declared due, or did it arise at the date of the confirmation of the sale had in pursuance of
Affirmed.
