101 Ala. 205 | Ala. | 1893
The evidence is free from conflict that Sneed was authorized to fill the blank left in the mortgage executed by Green to him, by inserting therein the amount of the former’s debt against the latter, after deducting therefrom the proceeds of certain two bales of cotton, and adding thereto the costs of a former suit between the parties. There is conflict in the testimony as to whether the mortgagee also had authority to add
The. general proposition that any material alteration of an instrument after its execution, without the maker’s consent, avoids it and discharges him from all obligation depending upon it is not controverted in this case.— Montgomery v. Crossthwait, 90 Ala. 553, 8 So. Rep. 498; Anderson v. Bellinger, 87 Ala. 334, 6 So. Rep. 82. Nor can it be doubted in principle or upon authority that a material and, as between the original parties to the instrument, vitiating alteration may consist in the filling of a blank, which the promisee is authorized to fill in a certain way, by the insertion therein of matter not covered by the authorization. — 1 Am. & Eng. Encyc. of Law, p. 518; Toomer v. Rutland, 57 Ala. 379. And as any change of the amount intended to be evidenced by a writing, whereby it becomes nominally a promise to pay either a greater or less sum than that originally expressed is a material, and, therefore, vitiating alteration (1 Amer. & Eng. Encyc. of Law, p. 508), so, in princi
The court below confined the application of these principles to cases in which the alteration is made with a fraudulent intent, and, finding no such intent to have actuated the plaintiff in this instance, held that the mortgage was a valid security for the amount really due, notwithstanding a different and excessive amount had been inserted in it. The distinction is not well taken. The question of intent is not involved. As is well said by counsel: ‘‘The motive with which the change is made, or the unauthorized filling of the blank is done, is not material. It is not because the thing done is actual fraud, but because a contrary rule would open too great a door for fraud,” and because, we may add, that the alteration changes the legal identity of the paper and causes it to speak a language differing in legal effect from that which it originally spoke, a result which would ensue however pure the intent with -which the alteration was made, that the law holds the instrument, as between the original parties and those nominally acquiring rights under it with notice of the alteration, to be null and void for all pui-poses. — 1 Am. & Eng. Encyc. of Law, pp. 518, 520; Glover v. Robbins, 49 Ala. 219; Toomer v. Rutland, 57 Ala. 379; Montgomery v. Crossthwait, 90 Ala. 573; 8 So. Rep. 498.
Where the alteration or unauthorized filling of blanks is free from all covinous intent, the1 result of an honest mistake or miscalculation, it may be that the promisee can recover on the original consideration : he certainly could not do even this if he made or consented to the change for any fraudulent purpose — 1 Amer. & Eng. Encyc. of Law, p. 526; White v. Haas, 32 Ala. 430 — but here the action is not on the original consideration for which, the mortgage was executed, but the right of recovery, the title asserted by the plaintiff in this action of detinue, depends upon the validity of the paper itself, which in legal contemplation ceased to be the instrument which the defendant executed the moment it was
The evidence not only authorized the jury to find for the defendant, but it showed, without conflict or room for adverse inference, that the muniment of title upon which the plaintiff relied for recovery was utterly infirm and invalid, and hence the jury could not have found other than they did under the law of the case.
It is clear that the trial court erred in setting aside the verdict and granting a new trial. The judgment to that effect is reversed aud annulled, the motion for new trial is overruled and denied, and the verdict and judgment for defendant as returned and rendered in the court below is left in full force.
Reversed and rendered.