Merchants & Farmers Bank v. Dent

59 So. 805 | Miss. | 1912

Reed, J.,

delivered the opinion of the court.

The appellees, R. K. Dent and wife, Emma Dent, executed and delivered to E. B. Cooper, trustee, a, deed in trust on several lots of land in the town of Newton, Miss., to secure certain indebtedness owing to the Merchants’ & Farmers’ Bank. A portion of appellees’ homestead was included in the land, and therefore the deed in trust was executed by Mrs. Dent. After the execution and delivery of the instrument, II. F. Sivley, the cashier and duly authorized agent of appellant Merchants’ & Farmers’ Bank, it is alleged in the bill of complaint, materially altered the deed in trust by inserting another lot therein, -which lot was the remainder of the homestead property of appellees. The bill charges that this alteration of the deed in trust was wilfully, corruptly, and fraudulently done. The appellees did not know of the alteration, and did not consent thereto. The appellants interposed a general demurrer to the bill. No answer denying the fraud charged in the bill was filed.

"Where a bill in equity charges fraud, which, if true, entitles the complainant to relief, an answer should be filed, denying the fraud so charged. Hentz v. Bank, 76 Miss., 429, 24 South. 902.

It is claimed by appellants that the bill is insufficient, because it “sought the aid of equity, but did not offer to do equity.” Under the facts of this case, it was not incumbent upon appellees to offer to do equity. Their bill sought an injunction against the sale of their property under the altered deed in trust, and sought the cancellation of the instrument itself.

Because of the unwaranted changing of the deed in trust, it became void and of no effect. The original instrument executed by appellees was in reality destroyed. It was not the paper which they signed and delivered. The appellants have no rights thereunder. v It is the rule of law that the material alteration avoids, the instrument. The reason of this rule is given in 2 Cyc. p. 179, as follows: “First (and what is said to be the true foundation of the doctrine), that no man shall be permitted, on grounds of public policy, to take the chance of committing a fraud without running any risk of loss by the event when it is detected; and, second, because the identity of the instrument is destroyed, and to hold one -under such circumstances would be to make for him a contract to which he- never agreed, which is especially true in-the case of a surety.”

From the case as presented by the pleadings, the chancellor did not err in overruling the demurrer.

Affirmed and remanded, with sixty days within which to file answer.

Affirmed and remanded.