159 N.C. 102 | N.C. | 1912
Lead Opinion
When we speak of an alteration in a writing, we refer to the legal acceptation of the- term, which implies a change made after its execution, and while an erasure or inter-lineation may be alteration, it is not such if made before tbe final execution of tbe writing.
Under tbe rule of tbe ancient common law, as illustrated in its earliest decisions, it was held that any alteration, however insignificant, rendered tbe writing void, and that tbe judge must pass on tbe whole question (Pigot’s case, 11 R., 26b), but this was modified even in tbe time of Lord Golee, to tbe extent that- tbe alteration must be material, and that tbe question as to tbe time when made should be submitted to a jury.
In Co. Litt., 225b, it is said that “Of ancient time, if tbe deed appeared to be rased or interlined in places material, tbe judges adjjudged upon their view tbe deed to be void; but of
Modern authority in England and in tbe United States has further modified tbe doctrine until it is now generally agreed that when an alteration is established it avoids tbe instrument, if it is material; that tbe materiality' of tbe alteration is a question to be decided by tbe court, without tbe aid of a jury; that any alteration is material if it affects tbe identity of tbe instrument or tbe rights and obligations of tbe parties to it, and that tbe question of tbe time when tbe alteration was made is a fact to be determined by tbe jury.
It is also held in all tbe States, except Missouri and New Jersey, that an immaterial alteration does not affect the validity of tbe writing.
An alteration by a stranger, without tbe knowledge of tbe grantee or obligee, while it cannot enlarge tbe obligations of tbe grantor or obligor, does not affect tbe right to enforce tbe writing as it was originally executed, and' tbe intent with which tbe alteration is mad,e is immaterial, unless it is fraudulent, in which event a court will not lend its aid.
Tbe cases supporting these principles are collected in tbe valuable note to Burgess v. Blake, 86 Am. St. Rep., 79, and in tbe learned and comprehensive article on Alteration of Instruments, by Judge John E. Dillon, in Cyc., vol. 2, p. 150.
Many other questions may arise as to tbe effect of tbe alteration of instruments, but in tbe midst of much conflict of authority we confine ourselves to those necessary to tbe consideration of tbe principal question presented by tbe appeal, which is, whether tbe burden is on tbe party claiming under a deed, on which an erasure or interlineation is apparent, to prove that it was made at tbe time of or before tbe execution of tbe deed, or is tbe burden on the party attacking tbe deed to prove that it was made after its execution?
Tbe question is important, and many titles may depend on its correct solution, as it will frequently arise after tbe parties to tbe transaction are dead.
If it is held that tbe burden is on him who urges that tbe deed is void because of tbe erasure or interlineation, it may
A brief summary of all tie North Carolina.cases bearing on tie alteration of instruments wiici we have been able to find after diligent research shows that tie question ias not been settled in this State.
In Nunnery v. Cotton, 8 N. C., 222, it was held that any alteration by tie obligee in a bond, whether material or not, avoided it. In this case tie alteration was tie cutting off tie name of a witness on tie bond.
In Pullen v. Shaw, 14 N. C., 238, held, that an alteration by tie obligee in a bond avoids whether material or not, and by a stranger does so, if material. If no evidence is introduced, tie question whether tie alteration was made before or after execution is dependent-on whether tie alteration is favorable to tie obligee or not.
In Sharp v. Bagwell, 14 N. C., 115, held, that equity would not relieve one who had cut off tie name of a witness from tie bond in ignorance of its effect.
In Mathis v. Mathis, 20 N. C., 60, tie action was on a bond for $12.50, and tie proof was that tie bond was given for $7.40. Held, that tie plaintiff could not recover $7.40, but that if ie had sued for $7.40 ie could have recovered that amount, as tie alteration was made by a stranger.
In Blackwell v. Lane, 20 N. C., 113, held, that tie addition of tie name'of a subscribing'witness to a bond, without tie consent of tie obligor, is not an alteration, because not material.
In Davis v. Coleman, 29 N. C., 426, held, cutting off tie name of one obligor and adding another avoided tie bond as to all who did not consent to tie change.
In Smith v. Eason, 49 N. C., 38, held, that an alteration in a material part of a bond avoids it.
In Dunn v. Clements, 52 N. C., 59, held, that retracing the name of the obligor, which had faded, does not avoid, although the name was misspelled in retracing, the sound of the name being the same.
In Norfleet v. Edwards, 52 N. C., 457, the action was on an instrument to pay money, and the signature was that of a partnership. Two seals after the partnership name were erased and the word “witness,” at the left of the paper, stricken out. The judge charged the jury that the burden was on the plaintiff to show that the erasures were made before or at the time of the execution. Held, error, because as the paper was signed by the partnership, the erasure was made to fix its character. The Court says: “In most if not in all the cases in which the contrariety of decision may be seen it will be observed that the erasures, interlineations, or rather alterations, were made in deeds, negotiable securities, or other instruments, whose nature and character were determined upon or fixed — that is, they either were intended to be, or were, at the time when the alterations were made, deeds or negotiable securities or instruments of some other particular kind. The instrument in the present case differs from them all in this particular, that the alteration was made for the very purpose of determining and fixing its character. With a seal it would be a deed, while if that were erased it would become a promissory note. If it were executed as a deed it could not bind all the partners, but if made as a promissory note it would have that effect. . . . Under such circumstances is it not a fair presumption that the seal was erased at the time when the instrument was given .by the one party and accepted by the other ?”
In Darwin v. Rippey, 63 N. C., 319, held, that the addition of the words “in specie,” after “dollars,” in a bond, with the consent of the payee and the principal, avoided the bond as to the surety.
In Respass v. Jones, 102 N. C., 5, held, that where the vendee struck out his name in a deed and inserted that of his wife, to defraud his creditors, no title passed, and a court of equity would not aid him.
In Cheek v. Nall, 112 N. C., 370, a husband raised the amount of a bond signed by him and his wife; held, that the bond was void as to the wife. It was also held that an immaterial alteration would not avoid, such as changing the recited consideration in a mortgage, the description of the debt in the mortgage remaining unchanged.
In Howell v. Cloman, 117 N. C., 77, a note and mortgage were for $500 when signed, and for $1,000 when registered; held, that the burden was on the plaintiff to prove that the defendant consented to the change.
In Martin v. Buffaloe, 121 N. C., 35, held, that the insertion of the name of the attorney and the amount of his fee in a deed to secure creditors, with the consent of the grantor after he signed it, did not avoid the deed, because it was not a clause necessary to the operation of the deed.
In Wetherington v. Williams, 134 N. C., 279, the question was one of fact as to the time of the change, and the question of the burden of proof was not raised.
In Gaskins v. Allen, 137 N. C., 426, a married woman, while under age, signed a deed. After she became of age she signed another deed to the same party for the same land. Both deeds were registered under one probate, the commission authorizing it being dated before, and the date of probate after, she was twenty-one. A charge was approved placing the burden on the plaintiff, a subsequent grantee, to prove that the date of the probate had been changed.
In Perry v. Hackney, 142 N. C., 368, the grantee after probate struck out his name from a deed and inserted the name of his wife, without the consent of the grantor, and it was held that no title passed.
Judge Freeman says, in the note to Burgess v. Blake, 86 Am. St. Rep., 128: “Among the almost innumerable decisions, and the conflict of authorities upon the subject of the presumptions arising from alterations apparent upon the face of the instrument, there seems to be but one principle upon which the authorities are in harmony. That is, where an alteration in an instrument is alleged to have been made, and such alteration is not apparent upon the face of the instrument, the burden of showing that the latter has been altered is upon the party who alleges it. This, however, seems to be the single note of harmony. Where the alteration is apparent, the authorities are hopelessly divided as to the presumptions arising from such apparent alteration. Any attempt to reconcile them would be useless, and an accurate classification of their varying views is impossible. They seem to fall, however, into four general classes, each of which is representative of a view opposed to that of the others: (1) One line of cases holds that no presumption arises from an alteration, apparent on the face of the instrument, but that the entire question of the time when the alteration was made is for the jury to consider in the light of all the evidence, intrinsic and extrinsic; (2) another holds that an alteration apparent on the face of the paper raises a presumption that it was made after execution and delivery; (3) a third line of authorities holds that the presumption that the alteration was made after execution arises only where the alteration or the facts surrounding it are suspicious; and, finally, it is held by another group of courts:' (4) that an alteration apparent on the face of the paper is, without explanation, presumed to have been made before delivery. This classification of the authorities is, at best, approximate only, as many of the courts have taken compromise positions, holding the presumption to depend upon various matters, such as denial under oath that the paper was executed, the nature of the instrument, i. e., whether a specialty or not, etc.”
As eminent authority may be found for either position, and we have no precedent in this State to guide us, we must adopt
A very large percentage of the deeds executed in this State are never seen by a lawyer until some question is raised as to title; they are written, in many instances, by men who know little or nothing of legal rules and who are not expert penmen, and the materials used — pen, ink, paper — are such as are gathered in the household, and frequently not; the best.
Under these circumstances a mistake in writing the deed may be expected, and when discovered an erasure or interlineation follows naturally, without thought of the consequences. If two kinds of ink are present they would be used indiscriminately, and the draftsman would not hesitate to ask one sitting by to make a necessary change.
We do not doubt that 99 per cent of the erasures and inter-lineations that appear in deeds are made in this way, and from honest,and proper motives, and if this is true it would seem to be wise and just to adopt a rule which will tend to preserve and sustain titles acquired by such deeds, although under it an injustice may occasionally result, and in óur opinion it is safer, and in accord with the better public policy to hold, as we do, that the party claiming under a deed is entitled to introduce it in evidence, upon proof of its execution, and that the burden is on the party who assails it, on account of erasures or inter-lineations appearing on its face, to satisfy the jury by the greater weight -of the evidence that the erasures or interlinea-tions were made after the execution of the deed.
A discussion of the numerous authorities in favor of this rule (and there are, perhaps, as many against it) would be useless, and we content ourselves by reference to a small 'number selected from many.
In Tatum v. Catomore, 71 E. C. L. R., 746, Lord Campbell says: “In Co. Litt., 225b, it is said that 'Of ancient time, if the deed appeared to be raised or interlined in places material, the judges adjudged upon their view the deed to be v.oid. But of latter time the judges have left that to the jurors to try
This language was quoted with approval in Little v. Herndon, 17 U. S., 26, and the Court says, after citing Tatum v. Calomore, supra: “In the absence of any proof on the subject, the presumption is that the correction was made before the execution of the deed.” And this last case was approved in Hanrick v. Patrick, 119 U. S., 156, the Court, after discussing the charge of the judge, saying: “At any rate, the presumption was that the erasure was made before the execution of the deed.”
In Wilkes v. Caulk, 5 Md., 41, the Court says: “It is incumbent on the party who wishes to avoid a deed by its erasure to prove that the alteration was made after its execution, and delivery”; and in Hopkins on Real Property, 429, it is said: “Where alterations or interlineations are present in a deed, the presumption is that they were made before the deed was delivered, though there are cases holding the contrary.”
To the same effect see Hagan v. Insurance Co., 81 Iowa, 330; Neil v. Case, 37 Am. Rep., 259; Wilson v. Hayes, 12 A. S. R., 761; 2 Cyc., 233 and 235.
This presumption is greatly strengthened by the facts appearing in this record that the deeds were registered in 1885, and until this day neither the grantor nor any one claiming under him has attacked their integrity; and the defendants have been in the actual occupation of parts of the land since 1879. The Supreme Court of the United States said in Malorin v. U. S., 68 U. S., 282, when speaking of an alteration in a deed, that the fact that no suspicion had been suggested for eighteen years was entitled to no little weight.
The jury will, of course, have the right, in determining when the erasure or interlineation was made, to consider any
If, however, the presumption was against the deed, it is doubtful if the plaintiff is in a position to take advantage of it, as it does not appear that he claims under the grantors in the deed.
Judge Dillon says, in Cyc., vol. 2, p. 189: “If the parties affected by a change in an instrument do not complain thereof, others, who are not parties to the instrument or affected by the change, cannot, ordinarily, set up the change, unless there is evidence of fraud between the parties to the injury of the creditors. The alteration must relate to the parties to the particular instrument altered.” See, also, Hockmork v. Richler, 16 Col., 263; Logue v. Smith, Wright’s Ohio Rep., 10; Asylum v. Houns (Ely.), 64 S. W. E., 642.
The exceptions to evidence cannot be sustained. If it be conceded that the answers of the surveyor to questions asked him were incompetent, it appears that he afterwards testified, without objection, that the deeds of the defendant covered the land claimed by her, which is all that was elicited by the examination objected to.
In our opinion the plat of the division of the lands of Elisha Wicker, father of the plaintiff, and the mortgage of the plaintiff to Elisha Watson, of date 20 March, 1891, were properly admitted; but if not, their introduction did not prejudice the plaintiff, as they -were offered for the purpose of showing that Juniper Branch was the western boundary claimed by the plaintiff, and he admitted on cross-examination that Juniper Branch -was one of his lines in the division of his father’s land.
The objection to the form of the judgment is well taken. The finding of the jury establishes the fact that the plaintiff is not the owner of any part of the land in controversy, and the
The plaintiff must recover upon the strength of his own title, and upon failure of proof by him the jury may well find that he is not the owner of the land, although satisfied, that the defendant has no title.
There is no fact admitted by the, pleadings or found by the jury which will support an affirmative judgment in favor of the defendants, and the judgment must be modified by striking out the clause, “but that the defendants are the owners and entitled to the possession of said lands,” and as thus modified it is affirmed.
The judgment will, of course, operate as an estoppel on the plaintiff, to prevent the further prosecution of an action on his behalf.
Modified and affirmed.
Dissenting Opinion
dissenting: It is reasonably well settled now, though contrary to older decisions, that when there is an immaterial alteration by erasure of interlineation in a deed or other instrument it does not vitiate. It is also settled that whether an interlineation or erasure is material or not is a question of law for the court. When a material erasure or interlineation appears on the face of an instrument or is shown by proof dehors, whether the burden is upon the party that produces it to account for it, or whether the burden is upon the other party to show that it took place after the execution of the instrument, is a matter as to which the decisions outside this State are in conflict. In many cases the rule is laid down that “Where a written instrument shows an interlineation or erasure upon its face the presumption, in the absence of evidence, is that it was made after execution, and the burden is upon the parties claiming under the instrument to account for the alteration.” 3 Enc. L. and P., 478; 2 A. and E. (2 Ed.), 276; 2 Cyc., 238, and many cases cited in those volumes.
In this State we have but two decisions expressly in point, and they are in accord with the above citations. In Dunn v. Clements, 52 N. C., 60, it is said: “Wherever the alteration
In Norfleet v. Edwards, 52 N. C., 457, the Oourt cites with approval the following from 2 Pars. Cont., 228: “In the áb-sence of explanation, the evident alteration of any instrument is generally presumed to have been made after the execution of it, and consequently must be explained by the party who relics on the instrument or seeks tq take advantage from it. Such is the view taken by many authorities of great weight. But others, of perhaps equal weight, hold that there is no such presumption; or at least that the question whether the instrument was written as it now stands, before it was executed, or has since been altered, or whether as so altered it was done with or without the authority or consent of the other party, are questions which should go to a jury, to be determined according to all the evidence in the case.” Our Oourt then adds: “Yery many cases are referred to in the note to that page which fully support the remarks of the learned author in the text. See, also, Dunn v. Clements, ante, 60.”
The rule in Dunn v. Clements, thus cited and approved in Korfleet v. Edwards, is not only the precedent in this State, but it would seem to comport with reason. The natural and orderly condition of a .paper is that it should not bear on its face or be shown by proof to have any material alterations or erasure. It is out of the ordinary course, and the party who produces the instrument should account for them. It will be almost impossible for the other party to show when or how the erasures were made. The party in possession has, or should have, knowledge and be able to show that the instrument when received by him already had such erasures or alterations. If prudent, he would not accept such instrument without a contemporaneous entry duly witnessed that they were on the instrument when it was delivered to him. This view has additional weight as to a deed now, since our registration laws
It is always in tbe power of tbe grantee to protect himself against tbe charge that a material erasure or interlineation was made after execution by requiring a memorandum stating that it was in tbe instrument at tbe time of tbe execution. But tbe grantor cannot thus protect himself against alterations and erasures made after tbe 'execution except by requiring proof of tbe grantee when be produces tbe instrument in evi-deuce. As to negotiable instruments, though they cannot be held back as a deed can be held from registration, yet as to them tbe law is well settled, and tbe burden is on tbe bolder to show that any alterations were made in such instrument at or before its execution,. and no prudent bank will accept such paper, in tbe ordinary course of dealings, without such proof.
It has been tbe general understanding in this State that material alterations by erasure or interlineation in an instrument, especially in a deed, must be noted and witnessed at tbe time of tbe delivery. Dunn v. Clements, 52 N. C., 60, has been understood to be tbe rule in this State. But if it is understood that this safe precedent is not longer tbe law, we may well apprehend that there will be a flood of cases in which instruments have been materially altered after delivery, and are withheld from registration till tbe grantor or other witnesses, who can prove tbe fact, have passed beyond the reach of tbe court, by death or otherwise. Tbe grantee remains in possession. It should be in bis power, always, either to refuse a conveyance containing material alterations or require a contemporary note thereof on tbe instrument. If be does not do so, and especially if be withholds tbe deed from registration, it is but fair that tbe burden should be upon him to account for such alterations or erasures. , .