27 Ill. 27 | Ill. | 1861
It appears that Organ, the principal obligor in this bona, presented it, signed and sealed, in blank for approval. The penalty was not then inserted, and some question arose as to the legality of filling in the amount in the absence of the securities, and without competent authority for the purpose. It was, however, finally agreed that the amount should be inserted in the bond, which was done. Organ seems to have been present, and it was done at his request, with his approbation and consent. He cannot therefore be heard to object to the validity of the bond. Whether it was, after the blank was filled, binding upon his sureties, can make no difference, as what he did at the time amounts to a re-delivery by him, after the blank was filled.
But the question is still presented, whether the filling the blank with the amount of the penalty, after the sureties had executed it, without their knowledge or consent, rendered it void as to them. Cases may no doubt be found which hold that the filling a blank promissory note under seal, with the amount agreed upon, does not release the in dorser. And that such is the case with commercial paper generally, is certainly true. But such cases are exceptions to, and not the rule. After a deed has been executed, it may be avoided by erasure, interlineation or other alteration in a material part; or by an intentional breaking or defacing oí the seal by the obligee. A deed to be binding must be in writing, signed, sealed and delivered by the parties. It has been held that a paper signed and sealed in blank, with verbal authority to fill the blank, which is afterwards done, is void as to the parties so signing and sealing unless they afterwards deliver, or acknowledge or adopt it. Gilbert v. Anthony, 1 Yerg. 69; Wayne v. Govenor, ib. 149; Myers v. McClana han, 6 Gill & John. 250; Parminter v. McDaniel, 1 Hill, 267; Boyd v. Boyd, 2 N. & M. 125; United States v. Nelson, 2 Brock, 64; Ayres v. Harness, 1 Ham. 368; McKee v. Hicks, 2 Dev. 379.
It is believed that these decisions fully accord with the rule announced by the British courts. And it is for the plain reason that after the blank has been filled up, the deed ceases to be that which the parties executed. It is then of a different tenor, and is another instrument, as much so as if it was executed in a penalty for one sum, and was changed to a different and larger sum. And without consent, re-delivery, or a subsequent ratification, no one would suppose that such an alteration could be made without releasing the parties. In this case, there is no evidence that the sureties consented to the change, re-delivered the bond, or in any manner ratified the act done. And these cases held, that even if they had agreed that the blank might be filled after they had executed the bond, still they would not be bound, unless they had been present and consented, or had adopted the act by a subsequent delivery, or by a ratification of the change. As the plaintiff must however recover against all of the defendants sued upon a contract, or against none, the court below decided correctly in rendering judgment for costs in favor of the defendants, which is affirmed.
Judgment affirmed.
