Ward v. CheneyWard v. Cheney
- Reporters:
- Before:
- Bricklell
This was a statutory real action, in which the appellee was plaintiff and the aрpellant defendant. The plaintiff deduced title to the premises in controversy undеr a general assignment for the benefit of creditors, purporting to have been еxecuted on the 6th day of-July, 1891, by the individuals composing the partnership of “Moses Brothеrs,” 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 еxecution. 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 оverruled, and an exception reserved by the appellant. It was shown that Sayrе, 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 аs *241an 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 thе 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 wаs taken to the introduction of the chattel mortgage in evidence, on the ground thаt a suspicious alteration appeared on its face which was not explained. The judge held an explanation not necessary. The original mortgage is nоt produced here, and we cannot, therefore, inspect it. We cannot presume error, and must, therefore, suppose that any alteration appаrent on its face was not, in the opinion of the circuit judge, suspicious in appеarance, and if so, he ruled correctly in receiving it in evidence. Unless they arе suspicious in appearance, alterations or interlineations are рresumed 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 executiоn 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 whiсh they were made, as matter of fact to be determined by the jury. — 1 Green. Ev., §564; 1 Whart. Ev.,-§ 629. If the supрosed interlineations exist, for six years all parties in interest have concurred in rеcognizing the validity of the assignment — have treated them as properly made — the сourt of chancery has accepted the resignation of Sayre, Levin and Snоdgrass as assignees, and has appointed successors to them. We *242do not pеrceive on what principle, the defendant, deriving no right or interest in or under the deеd — 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.