8 Cow. 71 | Court for the Trial of Impeachments and Correction of Errors | 1827
The defendant alleges that the verdict is against evidence. The evidence is certainly contradictory; and as it is the province of the j ury to weigh the testimony, I should feel unwilling to disturb the verdict on the question of alteration. The jury would have been justified in finding either way. The evidence as to the character of the defendant was improper; but was not objected to; and some of the questions were put by the defendant’s own counsel.
The only point for the present discussion, is, the correctness of the judge’s charge. This must be understood in reference to the facts of the case. The lease was proved *and admitted to be in the handwriting of the defendant. If, therefore, any alteration was made, it must have been made by the defendant himself, and not by a stranger. Had the judge said, that if the lease (supposing it to be for a term of years and therefore a chattel,) had been altered by Payn, though in a part not material, yet it would thereby become void and inoperative as respects Payn’s right to recover upon it, no fault could possibly have been found with the charge. The law was thus laid down in Pigot's case, (11 Co. 27.) That was an action on a bond. It was there resolved, “that 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 midst of any material word, the deed thereby becomes void,” “ So, if the obligee alters the deed by any one of the said ways, although it is in words not material, yet the deed is void; but if a stranger, without his privity, alters the deed by any of the said ways in any
In Hatch v. Hatch, (9 Mass, Rep. 311,) Sewall, justice, says these rules have not the same operation where a title *to real estate is in question. The cancelling of a deed will not divest property which has once vested by a transmutation of possession. A man’s title to his estate is not destroyed by the destruction of his deed. The case of Bolton v. The Bishop of Carlisle, (2 H. Bl. 250,) was brought to recover an incorporeal hereditament; a presentation to a vicarage; and it was there held that a right once vested is -not divested by merely cancelling the deed, or by a loss of the title. In that case the deed was said to be cancelled by the seal of the grantor being taken off, and destroyed or lost; but by whom, it is not said.
This doctrine was adopted in Jackson v. Chase, (2 John. 86, 7;) and several ancient authorities say a rent or other subject of grant is not lost by the destruction of the deed, as a bond or chose in action is. (Viner’s Ab. Faits, X. 2. pl. 5, citing Ventris, 297, and 2 Lev. 113, with a quere by Yentris, if the party himself cancels it. 1 Salk. 120.) In Read v. Brookman, (3 T. R. 151,) the question was like that in Bolton v. Bishop of Carlisle ; whether a deed could be well pleaded, being cancelled or lost by time and acci
In the note (136) to Go. Lit. 225, b. it is said, that the cancelling of a deed does not divest the estate from the person in whom it is vested by the deed. (Citing 1 Rep. in Ch. 100; Gilb. Rep. 236.) In the case of Bolten v. The Bishop of Carlisle, the court held that the sancelling of a deed did not divest property which has vested by trans
In this case, however, there are two leases, one for each party, both alike, and both are properly originals; as they are each executed by both parties; so that there was sufficient evidence to have authorized a recovery by the defendant without the production of the deed in his possession, unless his estate is gone in consequence of the alteration made by him in the copy of the lease, which was in his possession. Had there been but one lease, and that had been altered by Payn, as the copy in his possession was, all the estate which he takes by it would be forfeited and gone. The alteration avoids that deed, so far as he derives a benefit under it. But the estate is not destroyed, as there is still a valid deed in possession of Lewis, which secures to him the estate granted.
I am, on the whole, of opinion, that, although Payn altered the lease in his possession, yet the estate created by it, and by the lease in Lewis’ possession having vested in him, and being still supported by the lease in possession of Lewis, was not divested by the fraudulent alteration of
Hew trial granted.
See Dart’s Fendors and Purchasers of Real Estate. Waterman’s Notes, pp. 108, 454.