| Ill. | Apr 15, 1864
delivered the opinion of the Court:
The effect of an alteration in a written instrument depends upon its nature, the person by whom, and the intention with which it was made. If neither the rights or interests, duties or obligations of either of the parties are in any manner changed, an alteration may be considered as immaterial. It has been considered that even an immaterial alteration, if fraudulently made, would annul the instrument (2 Pars. on Notes and Bills 572), but this opinion has not been uniformly adopted; and it has been held that the motive cannot be inquired into unless the act itself materially affects the rights of the parties. Moye v. Herndon, 30 Miss. 110" date_filed="1855-12-15" court="Miss." case_name="Moye v. Herndon">30 Miss. 110. An alteration by a stranger ought not to destroy the rights of innocent parties. 2 Pars. on Notes and Bills 574. There is a conflict of opinion regarding the existence of a right of action on an instrument which has been altered by a stranger; but whatever may be considered as the correct rule in that regard, we are unable to perceive any good reason why such an alteration should cancel a debt, of which the instrument was merely evidence. Davidson v. Cooper, 11 M. & W. 778. It ought to be regarded as a spoliation. A material alteration of an instrument, fraudulently made by its holder, justly deprives the wrong-doer of all rights by virtue of it. The identity of the instrument is thereby destroyed, and courts will not assist persons who have been guilty of a fraud, to carry out the transaction wherein it was perpetrated. A party who voluntarily and fraudulently destroys the evidence of a debt agreed upon by the parties, ought not to be allowed to supply its place by other evidence. 2 Pars. on Rotes and Bills 572; Waring v. Smith, 2 Barb. Ch. 135.
In a court of equity a mortgage is regarded as an incident of the debt, and where a mortgagee has released or discharged the debt by a fraudulent alteration or destruction of the written evidence of it, he ought not to be permitted to sustain a suit for its recovery; .but where the alteration was not fraudulent, although the identity of the instrument may be destroyed, we think it should not cancel a debt, of which the instrument was merely evidence. If there was no attempt to defraud, there is no reason why a court should not assist the creditor as far as it can consistently
In the case under consideration, it was urged in argument that the alterations were fraudulently made. The bill alleges that the notes were altered with the assent of Vogle and Heisel, so as to bear interest at the rate of ten per cent, instead of six per cent., as they were originally written. The answers deny that the alterations were made by consent, but do not aver that they were fraudulently made. While the answers aver that the identity of the notes is destroyed, they do not aver that it was fraudulently done. The complainant has a right to have notice upon the record, in a precise and unambiguous manner, of the conclusions of fact intended to be drawn from allegations in an answer. The defendant is not required to state conclusions of law which he would deduce from the facts set forth; but if he states in his answer certain facts as evidence of a particular case which he represents to be the consequence of such facts, and on them rests his defense, he is not afterwards at liberty to use the same facts for the purpose of establishing a different defense from that to which he has drawn the complainant’s attention by his answer. 2 Dan. Ch. Pr. 815; Bennett v. Neale, Wightw. 324. We think the intention with which the alterations were made is a material fact. The character of the act and the effect of it depend upon the intention with which it. was done. As the intention is not put in issue by the answer,, it would be improper for us to consider the evidence in regard to it.
The decree of the court below was for the sum which would have been due upon the notes if .they had not been altered, and the testimony of Stanberry relating to the alterations merely, and the intention with which they were made, was immaterial, and was in no way relied upon in the conclusion to which the court arrived.
The complainant failed to sustain the .allegations of his bill by which he sought a decree for a greater sum, and the defendant cannot complain that the evidence adduced in support of such allegations was inadmissible. The decree was rendered for the sum due, and it is affirmed.
Decree affirmed.