Ward v. Cheney

117 Ala. 238 | Ala. | 1897

BRICKLELL, C. J.

This was a statutory real action, in which the appellee was plaintiff and the appellant defendant. The plaintiff deduced title to the premises in controversy under a general assignment for the benefit of creditors, purporting to have been executed on the 6th day of-July, 1891, by the individuals composing the partnership of “Moses Brothers,” toH. A. Sayre, S. M. Levin and R. B. Snodgrass, as assignees, they appearing to have joined-in- its execution. The defendant objected to the introduction of the assignment as evidence, upon the alleged ground that it appeared affirmatively upon the face of the instrument, that the names of Levin and Snodgrass were inserted therein after its execution. All interlineations in the instrument were in the same handwriting as its body, and a particular interlineation is noted as having been made before the signing. The objection was overruled, and an exception reserved by the appellant. It was shown that Sayre, Levin and Snodgrass had resigned as trustees or assignees, and the court of chancery had appointed the plaintiff and one Janney as their successors, and that Janney had died, leaving the plaintiff surviving trustee or assignee.

It was for the presiding judge to determine by an inspection .of the assignment, whether the supposed interlineations were apparent on its face; and if apparent whether they were not so accounted for or explained, as to require that the assignment should go to the jury as an instrument of evidence. — 2 Amer. & Eng. Encyc. of Law, (2 ed.) 273. The original instrument is not before us, nor is there any description of the supposed interlineations. There is no more than the affirmation in the objections that these interlineations were apparent on the face of the instrument; an affirmation which the court on inspection may have found untrue in point of fact; and if necessary to support the rulings of the court, on error, the presumption would be that such was the case. In Sirrine v. Briggs, 31 Mich. 445, a case similar, it was said by Judge Copley : “Exception was taken to the introduction of the chattel mortgage in evidence, on the ground that a suspicious alteration appeared on its face which was not explained. The judge held an explanation not necessary. The original mortgage is not produced here, and we cannot, therefore, inspect it. We cannot presume error, and must, therefore, suppose that any alteration apparent on its face was not, in the opinion of the circuit judge, suspicious in appearance, and if so, he ruled correctly in receiving it in evidence. Unless they are suspicious in appearance, alterations or interlineations are presumed to have been made before the execution of the instrument, not afterwards.”

The mere fact that alterations, or erasures, or interlineations, are apparent on the face of a deed does not destroy its validity. The effect of them, ordinarily, depends- upon extrinsic evidence, and is incapable of determination upon a motion to exclude the deed as an instrument of evidence. — Ravisies v. Alston, 5 Ala. 297. If apparent on the face of the deed, and nothing appears to the contrary, the presumption is, that they were made contemporaneously with the execution of the instrument. But if any ground of suspicion is apparent upon the face of the instrument, the law presumes nothing — it leaves the question of the time, the agency, and the intent with which they were made, as matter of fact to be determined by the jury. — 1 Green. Ev., §564; 1 Whart. Ev.,-§ 629. If the supposed interlineations exist, for six years all parties in interest have concurred in recognizing the validity of the assignment — have treated them as properly made — the court of chancery has accepted the resignation of Sayre, Levin and Snodgrass as assignees, and has appointed successors to them. We do not perceive on what principle, the defendant, deriving no right or interest in or under the deed — so far as appears, a mere intruder or trespasser upon lands conveyed by it — can draw in question its validity to the prejudice of parties in interest. — Ravisies v. Alston, supra.

We find no error in the record, and the judgment of the circuit court is affirmed.

Affirmed.