3 Barb. 404 | N.Y. Sup. Ct. | 1848
Lead Opinion
The plaintiff claimed under a sheriff’s sale, by virtue of an execution and judgment in which Isaac E. Guernsey was a defendant. He proved a lease in fee executed by James Jones and Samuel Irish, jr. dated January 9, 1840, and an assignment endorsed thereon, dated 11th of July, 1840, to Isaac E. Guernsey, covering the premises in question. There was no objection to the validity of the lease, or the form of execution by Jones and Irish. The title, therefore, had passed
There is no principle of the common law which requires a deed to be written throughout with the same colored ink. The fact that ink of different colors is used may or may not afford evidence of a fraudulent alteration of an instrument. It may often be an important item of evidence on that question. And it may be consistent with the utmost honesty. There is nothing in the fact, considered in itself, which will require the court to exclude the instrument for that reason, as matter of law. It may be a proper consideration for the jury, in connection with other facts, on the question of a fraudulent alteration; but the question was not put to the court in that way.
Nor is the fact that the name of Isaac E. Guernsey was written on an erasure of another name, prima facie evidence against the validity of the assignment. The bill of exceptions concedes that it was so written. It is competent for the parties to write their deeds on such paper or parchment as they please, whether upon an erasure or not. There is no law requiring a deed to be free from interlineations, blots or erasures, though it is conceded that such blemishes may cast suspicion on the instrument. The defendant did not pretend that his name had been erased, or the name of any one from whom he derived title; for he defended at the instance of Jones and Irish, one or both of them, the original lessors. The execution of the lease by Jones and Irish, it has been before remarked, was not disputed. Those gentlemen had thus conveyed the premises to somebody — the original lessee, whose name is not given in the bill of exceptions. That lessee assigned, as the plaintiff contends, to Guernsey. But suppose he assigned to somebody else, and the name of the assignee was erased and that of Guernsey fraudulently inserted; that fact cannot affect the rights of Jones and Irish. Their title passed, by the execution of the lease,
There was no evidence that this erasure had been made after the execution of the assignment, nor by whom it was made; and assuming that an explanation of some kind was necessary, for the consideration of the jury, there was no error in permitting it to be received. The fact that the defendant, at the close of the case, did not urge the insufficiency of the explanation as one of the grounds of his motion for a nonsuit, is conclusive evidence either that the explanation was satisfactory, or that the objection itself was abandoned.
The ancient strictness with regard to alterations in a deed in points material, which rendered the deed void, whether made by the party benefited or by a stranger, as was declared in Pigot’s case, (11 Co. 26,) has been qualified by subsequent cases. (See 6 Cowen, 748, 749, where the cases are collected and reviewed. 8 Cowen, 73. 15 John. R. 297, per Platt, J. See also 3 D. & E. 152; 2 H. Bl. 259; 6 East, 95; 10 Id. 60.) The reason for this strictness may be gathered from the ancient practice of actually bringing the deed into court for the inspection of the judges; and if, as is said in 10 Coke, 92, b. the judges found it had been rased or interlined in any material part, they adjudged it to be void ; though Coke says that practice was afterwards altered. (Per Butter, J. in Martin v. Miller, 4 T. R. 338, 339.) The doctrine relied on from the Touchstone, 69, comes from the same source. And Mr. Justice Sutherland, in Rees v. Overbaugh, (6 Cowen, 748,) in speaking of the rigor of this ancient rule, intimates that it has been substantially exploded by the modern decisions. In early times, when few, and perhaps none of the jurors could read or write, and when deeds were drawn only by men of a particular profession ; and when the rules of pleading required the actual production of the deed, corresponding in all respects with the profert, there was some propriety in the strictness contended for. But that extremely rigorous rule is not adapted to modern times. It was not settled in England, that a deed which had been lost or destroyed by time or accident, could be pleaded
The objection that the execution could not be enforced upon Guernsey’s real estate while Smith, his co-defendant, had personal property, can only be raised by Guernsey, if it can by any body. So also, the other objections as to the regularity of the sale cannot be raised by strangers to the execution. (See 8 Cowen, 162; 1 Id. 114; 4 Wend. 462, 474; 2 Hill, 364; 8 Wend. 545; 12 Id. 96; 2 R. S. 369, § 40, 1st ed.)
The objection that the judgment was paid by Smith, and the assignment thereof was to him, and that therefore the subsequent proceedings were void, is not well founded in fast. The assignment was made to Mr. Ellis, and there is more evidence that he furnished the money, than that it was furnished by Smith. If this point had been in doubt, the court should have been asked to submit it to the jury. But the fair intendment from all the evidence is, that Smith procured Mr. Ellis, his attorney, to buy and take an assignment of the judgment. This he had a right to do. (See Steele v. Babcock, 1 Hill, 527.) This is not like The Bank of Salina v. Abbott et al. (3 Denio,
At law, it is well settled that payment of a judgment to the plaintiff or the owner, by the defendant, or by one of several defendants, extinguishes it, although such payment be made by a defendant who is a mere surety. The motion for a new trial should be denied,
Dissenting Opinion
dissented, on the question of alteration ; he holding tljqt the onus of showing the alteration to have been made before the execution and delivery of the assignment, was on the party setting up the instrument; and that this proof must be made before the lease could be received in evidence.
New trial denied.
