Woolley v. Constant

4 Johns. 54 | N.Y. Sup. Ct. | 1809

Thompson, J.

delivered the opinion of the court. The first objection raised on the part of the plaintiff, against the validity of the transfer of property in the brig America, by Evans, the absent debtor, to Coffin and others, is, that the bill of sale was originally void, because die grand bill of sale was not delivered as a substitute for the possession of the brig, This objection was, however, abandoned ‘ during the argument, on the ground that (if amounting to any thing) it ought to have been raised at the trial. The real and only point, then, before us, is, whether the idling up of the blank left in the bill of sale, for the certificate of registry, rendered the bill of sale void. The jury have found that the blank was filled up with tire consent of Evans, the vendor. The testimony upon which that finding was grounded, is not stated in the case ; we are, therefore, to take it for granted, that that fact is not controverted, and are, of course, relieved from any inquiry how far such an act could have been permitted without the consent of the vendor. Neither is it requisite to examine whether the filling up of this blank made a material alteration in the deed, because, I think it can be maintained that a deed may be altered in a material part with the consent of both parties. It is difficult to perceive any objection to this, since the temptations to abuse and fraud, which would be felt, if such alterations were allowed by one party only, do not exist.

In 2 Roll. Abr. 29. (U.) pl. 5. it is, however, stated, that if a material alteration be made in a deed by the obligor, with the consent of the obligee, it is still void; and for this, Facman's case in the C. P. is cited. But when this case was cited in Master v. Miller, (4 Term Rep. 323.) Lord Kenyon said that there had been contrary decisions since; and in Markham v. Gomaston, as reported in Moore, 547, a subsequent and contrary decision is stated to have been made in the K. B. A bond was given containing a recital of a former bond or recognisance, against which the one then in question was taken by way of indemnity. The former bond was recited with a blank for the Christian name and addition of the obligee, and this blank was afterwards filled up. In a suit upon the bond of indemnity, this matter was specially pleaded, and the plaintiff replied, that the blank was filled up with the assent of the obligor, and upon demurrer, judgment was given for the plaintiff. That is a case very analogous, and, indeed, in point; for it will be admitted that the blanks in that case were material.

In the case of Zouch v. Claye, (2 Lev. 35.) this decision in Moore is cited by Sir M. Hale and the whole court, as correctly reported : and the court there established the doctrine, that an alteration in a bond, in a material part, by consent of all parties, did not vitiate the instrument. I am aware that the brief, and sometimes contradictory manner of stating the case and decision, in the old reports, renders their authority less conclusive than it would otherwise be; and this remark applies to the case of Markham v. Gomaston, as being reported with considerable variation in Moore and Croke. (Cro. Eliz. 626.) But Lord Chief Baron Comyn understood the decision in Levinz, as being a. direct and full authority on the point before us, and so he gives it in his Digest. (Vol. 4. p. 169.) A decision took place before Lord Mansfield, in Texira v. Evans, which is also in favour of the validity of such an alteration. The case is stated by Wilson, J. in the Exchequer Chamber, in 1 Anst. 228. A bond was executed with blanks for the name and sum and delivered by the obligor to an agent for tile purpose of raising money ; the plaintiff lent a sum, and the agent accordingly filled up the blanks with that sum and the plaintiff’s name, and delivered the bond to him, and on non est factum pleaded, the bond was held good.

As between the parties themselves, I cannot discover any well founded objection to this rule. If the interests of third persons had in the mean time attached, perhaps a deed so altered ought not to have relation back to the time of its execution. But that was not the case here. The bill of sale was perfectly competent, with the blank in it, to pass the property of Evans, and all that has been contended on the ,part of the plaintiffs is, that the insertion of the certificate of registry gave the vendees some additional privileges in the enjoyment of the vessel. But the property still had vested in them, even without the enjoyment of those privileges. Evans had no interest left in the vessel which could be attached.

The opinion of the court, therefore, is, that the motion for a new trial must be denied.

Ride refused-