Thomason v. Wilson

127 Ga. 141 | Ga. | 1906

Cobb, P. J.

(After stating the foregoing facts.) In order to render a promissory note a sealed instrument it must be so recited in "the body of the note. The mere addition of the seal after the signature of the maker is insufficient. Jackson v. Augusta Southern R. Co., 125 Ga. 801, and cit. When the note in the present case was executed it was not a sealed instrument. A seal followed the mame of the maker, but the body of the instrument did not recite "that it was under seal. ' It was therefore merely a written promise to pay, not under seal. The period of the statute of limitations applicable to such a paper is six years. The suit was not brought within that time after the date of the maturity of the note. The plea of the defendant alleged that the words, “Witness my hand .and seal,” were inserted in the note after it was signed by him, and without his authority or consent. The plaintiff testified that he inserted these words in the note by authority of the defendant, but that this authority was in parol. The addition of these words to the note changed the legal character of the paper. It made that which was an unsealed instrument before the words were added an instrument under seal.- The code declares that authority to make a sealed instrument must itself be under seal. Civil Code, § 3002. The changing of an ordinary promissory note into a sealed instrument is the making of a sealed instrument, and the authority to make this radical change in the paper must be evidenced in the same way that authority to make a sealed instrument in the first instance would have to be shown. Under the evidence the authority required by law for this purpose was lacking, and therefore the paper remained an unsealed instrument, and its legal effect was the same as if the words had never been inserted therein. It is said, though, that when a party sued upon a written instrument seeks to avoid it entirely on the ground that it has been altered in a material part, he must allege in the plea that the alteration was made by a person claiming a benefit under the contract and with intention to defraud. Shirley v. Swafford, 119 Ga. 43; Burch v. Pope, 114 Ga. 334. The rule laid down in the decisions cited and the sections of the code upon which these decisions are based has no application in a case like the present. If the party sought to be held liable under the written contract relies upon the alteration in order to vitiate the instrument and altogether avoid liability thereon, it is absolutely essential, in order to render the plea complete, that there must be allegations that .the alteration was made by a party claiming a benefit under the paper and that the alteration was made with intent to defraud. The purpose of the plea, however, in the present ease, was not to vitiate the paper and to avoid liability altogether thereon. The effect of the plea was simply to charge that the paper sued on was not the paper executed; that the defendant was liable upon the paper in its original condition; but that the effect of the alteration was to change the time in which suit upon the paper could be brought. There, was no effort to show want of liability under the paper as a consequence of the alteration. ' The sole purpose of the plea was to let in the defense of the statute of limitations, which always admits a past liability, and that there would be a present existing liability except for tbe lapse of time. If the words had been inserted by the bolder with a fraudulent intent, this would have been a proper subject-matter of a plea seeking to vitiate the undertaking altogether; but this was not the defense relied upon. There was no error in refusing to strike the amendment to the plea,' nor in directing a verdict for the defendant on the plea of the statute of limitations.

Judgment affirmed.

All the Justices concur.