53 Miss. 542 | Miss. | 1876
delivered the opinion of the court.
The suit was upon a note for $3,840 given by the appellant to the appellee’s intestate for the purchase-money of a tract of land. The note undertook to recite the land for the price of which it was executed, but the land was misdescribed. This being discovered by the payee some months after its execution, he took it to one Harris, who had acted as draughtsman for both parties in drawing it, and procured him to interline and alter it, so as properly to describe the land.
In suing upon the note, several counts were laid in the declaration: 1. Upon the note ; 2. Upon a special contract to pay the sum agreed upon, and a delivery and retention of possession of the land thereunder ; 3. The common counts for money paid out and expended, &c.
To the count upon the note there was a plea of non est factum under oath; and the view which we take of this count and the plea thereto renders an examination of the subsequent pleadings unnecessary, in so far as they relate to an ultimate right of recovery. We doubt whether the altera
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. The only questions in such eases are, Does the alteration actually conform to the true intention of both parties to the instrument ? and was it honestly made to correct the mistake, and with no intent of procuring an advantage ? Where these questions are answered in the affirmative, the law will presume or dispense with the assent of the maker of the note to its alteration. 2 Parsons on Bills and Notes, 569, 570 ; Chitty on Bills and Notes, 184,185 ; Bayley on Bills and Notes, 90 ; Kershaw v. Cox, 3 Esp. 246 ; Knill v. Williams, 10 East, 431; Brutt v. Picard, Ry. & Mood.; Clute v. Small, 17 Wend. 238; Hervey v. Harvey, 15 Me. 357; Bowers v. Jewell, 2 N. H. 543; Boyd v. Brotherson, 10 Wend. 93.
The point was ruled otherwise in Miller v. Gilleland, 19 Penn. St. 119, by a divided court; but we think the dissenting opinion of Justices Lowrie and Woodward (to be found in 1 Am. Law Reg. 672) enunciates the sounder doctrine, both upon reason and authority.
The judgment in the case at bar is therefore maintainable upon the first count in the declaration.
By the defendant’s sixth plea she averred “ that the original note was given by her in consideration that the plaintiff would sell and convey to her by proper deed of conveyance the land,” &c.; and that no deed had been tendered before suit brought. A deed was filed with the declaration, which, by the judgment of the court, was ordered to remain on file, and be delivered on payment of the judgment. Was there any obligation to tender it before the institution of the suit ? There was no written contract to convey the land, nor any
It will be observed that there is no allegation that the deed was to be made at or before the payment of the note, nor is any time specified when the execution of the deed was to take place. The note was payable one day after date. While it is true that the courts will hold the covenant to pay and the covenant to make title as dependent, unless a contrary intention clearly appears, it is no less true that the covenants must be regarded as independent, where the time of payment precedes the time fixed for delivering the deed, or where no time for making title is specified. Gibson v. Newman, 1 How. (Miss.) 341; Leftwich v. Coleman, 3 How. (Miss.) 167; Rector v. Price, 3 How. (Miss.) 321; Robinson v. Harbour, 42 Miss. 795.
The case of Gibson v. Newman, supra, was much like the one at bar. In that case, as in this, there was no written obligation to convey, and the question was determined by the language of the plea. There, as here, the plea failed to aver any period when the deed was to be made; and upon this ground the covenants were held to be independent. That case is cited and approved in Robinson v. Harbour, ubi supra, the latest authoritative exposition of this court on the much-vexed question of dependent and independent covenants.
The demurrer to the plea in the case at bar was properly sustained. Judgment affirmed.