70 Miss. 157 | Miss. | 1892
delivered the opinion of the court.
The material facts shown by the appellant’s original bill, and admitted by the demurrer of the appellee, are these, viz.: The appellee and her husband, J. T. L. Hambxdck, being indebted to appellant in the sum of $6,973.95, agreed to give him their note for that amount, and to secure the payment thereof by a trust-deed ixx his-favor oxx certain lands in Noxubee couxity, ixicludixxg the north-east one-fourth and thirty acres off the east'uide of the north-west one-foux’th of section 17, township 16, l’ange 19; axxd they accordingly made and delivered to appellant their promissoi’y xiote for said sum, due December 1, 1891, executing, at the saxne time, to Thomas Foote, as trustee, their deed of txaxst, to secure the payxxient of the said xxote, intending to include in the tiuxst-deed the land, and only the land, fully axxd particularly set out and described ixx the bill, in which.is included the said nox’tb
The prayer of the bill is for a decree of the court for a sale of all, or of a sufficiency of the lands embraced in the trust-deed, as corrected, for the satisfaction of the appellant’s debt.
To this bill appellee interposed her demurrer, assigning, among other causes, as the second ground, that the alteration of the trust-deed, as averred and set out in the bill, rendered the same void, and destroyed all rights which appellant had thereunder. The demurrer was by the court below sustained, and the bill dismissed,.the appellant declining to amend; and from this action an appeal is taken.
Before proceeding to consider the proposition thus presented, it is necessary for us to dispose of two contentions, relied upon by counsel for appellant as conclusive of the controversy, and as obviating any requirement on our part to determine the legal question raised by the second ground of demurrer.
1. It is said for appellant that it sufficiently appears from the statements of the bill that J. T. L. Iiambrick, the husband of appellee, was the agent of his wife in this entire transaction, and was authorized to make such alteration and correction of the trust-deed. This contention rests upon an erroneous view of the meaning and effect of the averment of the bill, “that the whole transaction was between complainant [appellant] and said J. T. L. Ilambrick, acting for himself and his wife, except that defendant [appellee] executed the
2. It is insisted further, however, by counsel for appellant, that the hill shows acquiescence — that is, assent — subsequent, on appellee’s part, to the alteration and correction of the deed made by her husband. This contention rests upon the avenneut of the bill, “that said defendant [appellee] was either informed by her husband of the mistake that had been made, and that had been corrected by him as aforesaid, and acquiesced in said correction, or she never had any information that any mistake had been made, but supposed all the time that the said deed of trust embraced and included said N. E. J and 30 acres off the east side of the N. W. of said section 17,” etc.; and upon another averment of the bill, to wit; “that as late as Decémber 3, 1891, said defendant in a letter to complainant admitted that said deed of trust embraced her homestead, and that complainant could lawfully proceed to have it sold.”
If the first averment, to the effect that appellee was informed by her husband of the con’ection and alteration of the deed, and acquiesced therein, had gone no further, and had not been burdened with its alternative statement — which appellee is entitled to take as true against him — to the effect that appellee never knew of the alteration and correction made by her husband, there would be ground for the contention. But the alternative averment that appellee never
Ve now come to the examination and determination of the chief question made by the record before us, and which is, fairly stated: Does the alteration of the trust-deed, in a material matter, by one of. the grantors, after its execution and delivery, and while in the custody of the beneficiary, and with his privity, without the knowledge and consent of the other grantor, whereby an advantage is conferred upon the beneficiary, render the deed absolutely void, though the alteration was made in good faith, in an honest effort to correct a mistake, and to conform the instrument to the real intention of all the parties at the time of its execution ?
The courts in England and the Bnited States which have answered this question affirmatively, holding that any alteration of a deed, bond, 'bill or note, when made by the voluntary act of the creditor, to his advantage, and whereby the
It is impossible to yield the assent of the mind to the first ground on which the rule ip supposed to be founded, for to do so would be, in effect, to say that no written instrument shall ever be made to correspond to and effectuate the real contract between the parties by extrinsic evidence; that the naked letter of the written contract, though mistakenly drawn, shall not be shown by any parol proof not to embody the true agreement between the parties. To refuse to listen to parol evidence, to ascertain whether the written instrument embodied the agreement of the p'arties, or through mistake» ■wilfully or inadvertently made, failed to do so, would indeed shut the door against the possibility of fraud and perjury by one of the parties, but it would at the same time open it wide to fraud and knavery on the other side. The proper protection of debtors who have bound themselves in writing, .will be best secured, not by absolving them from obligations which they have assumed, or continuing them in properties which they have agreed tó part with for valuable considerations, but by ascertaining what is the truth, and compelling observance of that by all parties.
The second reason advanced in support of the rule appears to us equally unsound, for it assumes that any alteration of an instrument, under any circumstances, is fraudulent. But
"When we come, too, to carefully examine the authorities holding to this harsh and unjust rule, we shall find in their inharmonious and inconsistent utterances that, while pro
This rule, as announced in Pigot's Case, 11 Coke, is as follows : “ When any deed is altered in a point material, by the plaintiff himself or by any stranger, without the privity of the obligee, be it by interlineation, addition, rasing, or by drawing of a pen through a line or through the middle of any material word, that the deed thereby becomes void.” And while the long subsequent English cases, as well as the American cases which follow, and are founded upon the authority of this ruling by Coke, all point to Pigot’s Case as the source of their inspiration, that half of the ruling relating to alterations made by strangers is not now given credit by any court in the United Stales, and, as to the other half of the rule relating to alterations by the obligee, the courts of both countries are industrious to, and successful in, finding some exception or modification or limitation by which to save the' unwary who have, mistakenly, but not fraudulently, undertaken to correct admitted mistakes in the contract as originally drawn.
In Kershaw v. Cox, 3 Espinasse, 246, suit was brought on a bill of exchange, drawn by Collier & Son in favor of Cox, the defendant in the suit, and indorsed by Cox and delivered to Kershaw, son of one of the plaintiffs, and he, being indebted to plaintiffs, remitted the bill to them in payment of his debt. The day following, the bill was sent back by plaintiffs, on discovering that the words “or order” were wanting, so that it could not be negotiated by indorsement. On receiving it back, Kershaw, the son, applied to the defendant and indorser, who referred him to Collier, the draiyer, who inserted the words “or order,” giving negotiability to tho bill. On trial it was contended for
In Brutt v. Picard, 1 Ryan & Moody, 37, which was a suit by the indorsee against the acceptor of. a bill of exchange, Abbott, Lord C. J., said : “ I shall leave it to the jury to decide whether this bill was not dated by mistake 1822. If they are of opinion that it was originally the intention of the ,parties to the bill that it should have been dated 1823, and that the figure 2 was inserted by mistake, I am of opinion that this alteration will not vacate the bill.” In this case, though the alteration was in a material point, the date of the bill, yet the striking out of 2 and the inserting of 3 to make it con
In many of the American cases professing to stand by that part of the inequitable old rule which renders void an instrument altered, without regard to the motives of the person making the alteration, we find like evidence of the practical abandonment of the doctrine, in cases of mere mistake — where fraud cannot be affirmed. In support of this remark, and to avoid the undue extension of this opinion by protracted examination in detail, we quote from Parsons on Notes and Bills, vol. 2, pp. 568, 569: “Words which the law would annul or supply may be added to a note or bill, and constitute no material alteration; for it would be unworthy of the wisdom of the law to decide that an incautious interlineation of a word, which the same law would necessarily imply, should defeat the contract. . . . Mistakes in a note or bill may be corrected, and the alteration will not vitiate; the principle and reason being quite analogous to those stated in the preceding paragraph. The insertion of words or figures which have been left out by mistake is no’ defense.”
It must be conceded, however, nearly all text-writers, and the majority of the courts of last resort in the United States, yet assert the correctness, in a general way, of the harsh rule we have been considering. But we find excellent authority for the j uster and more equitable rule, which we have foreshadowed — that an alteration innocently made, without improper motive, to conform the instrument to the intention of the parties at the time of its execution will not avoid it. In
In Russell v. Reed, 36 Minn., 376, we find this satisfactory statement of the rule of law: “But the unauthorized and material alteration of a mortgage by the mortgagee, or with his privity, after execution, unexplained, is presumptively fraudulent, and vitiates the contract.”
The like enlightened ruling was made by the supreme court of Massachusetts, in the case of Adams v. Frye, 3 Met., 103. Said Dewey, J., in delivering the opinion of the court: “ The court are of opinion that the rule of law applicable to the case before us may be properly stated as follows: (1) That if the obligee of an unattested bond, after the execution and delivery thereof, shall, without the knowledge and assent of the obligor, fraudulently, and with a view to gain some improper ' advantage thereby, procure a person who -was not
In harmony with this general view is the opinion of the court in Vogle v. Ripper, 84 Ill., 100.
Without pursuing the examination further, it remains to be said that the modern and liberal rule has been adopted in this state, in the case of McRaven v. Crisler, 53 Miss., in language so forcible and unambiguous as to forever put an end to controversy in our midst. It was well said by Chalmers, J., in that case: “ But, even if it be deemed a material alteration, we think it- is equally clear that it did not vitiate the note. It was but the correction of a mistake, so as to conform the note to the intention of both the parties to it, and it was made in such manner as clearly to negative any fraud upon the part of the payee, or any intention to obtain an advantage. That under these circumstances alterations in notes will not vitiate them, we think is well settled.”
An exhaustive examination of this question, with careful and protracted-consideration of the subject as again presented in the case at bar, confirms us in the wisdom and justice of the former opinion of this court in the case just cited, and we decline to depart from it.
In response to the suggestion of counsel, we have only to add that the rule is applicable to alterations in deeds, bonds, notes and bills alike. There is no contrariety of opinion on this point in all the numerous authorities examined by us. Indeed, it is held that there is greater reason for the rule in
The act of alteration in the case before us, it is hardly necessary to say, is nugatory and inoperative, whereby the lands constituting the homestead were inserted-. As to these, the deed is not the act of appellee. But for that unauthorized act, the deed, as to all the other lands, is held by us not to be avoided, and that the demurrer should have been overruled.
Decree reversed, demurrer overruled and leave to answer given within thirty days after mandate filed.