Wren v. Fargo

2 Or. 19 | Or. | 1860

Prim, J.

The plaintiff in error contends that the eonrt below improperly admitted parol evidence to account for. the apparent alteration of the indorsement made on the official bond of Fargo by the Board of County Commissioners, because, he says, it contradicts the written terms of the record. If that were true, the objection would be a good one; but, we think, such was. not the effect, or the purpose of its admission; but it was to ascertain what the written terms of the record were, by ascertaining when, by whom, and under what circumstances the alteration, apparent by inspection, was made. Our statute, on page 138, section,46, provides that “ any party producing a writing as genuine, which has been altered after its execution in a part material to the question in dispute, and such alteration is not noted in the writing, shall account, for the alteration or appearance.” Also, in the case of Speake et al. v. United States, 3 Curtis, p. 245, Justice Story, in delivering the opinion of the court, used these words: “ But it is to be considered that the parol evidence is not admitted to explain or contradict the terms of the written contract, but only to ascertain what those written terms are. On non est factum, the present validity of the deed or contract is in issue; and every circumstance that goes to show that it is not the deed or contract of the party is provable by parol evidence. It is of necessity therefore that the other party should support it by the sapie evidence. The fact that there is an erasure, or interlineation, apparent on the face of the deed, does not of itself avoid it. To produce this effect, it must be shown to have been made under circumstances that the law does not warrant. Parol evidence is let in for this purpose; and the mischief, if any, would equally press on both sides.”

If it could not be admitted for such purposes, under such circumstances, it would be in the power of any one, who might have charge of the records, or who might obtain access to them, to make material alterations in them, and thus make them read entirely different from the way they were originally made. On the 6th day of July, 1858, the official bond of Fargo was accepted, approved, and the approval indorsed thereon and filed, and the oath of office taken. Now, had the commissioners any power or authority, on the next day in the absence of Fargo, and without his knowledge, to cause two of the sureties to come before them, and have their names erased from the bond, and order it disapproved, after they had once acted upon it? We think not. Their powers and jurisdiction are limited by statute; and any official- act of theirs, not thus authorized, is void. When the official bond of Fargo was presented, it was their duty to see that it was such an one as the law required, and if so, to approve it and cause their approval to be indorsed thereon, and it filed away among the public records; and the rights of the county became vested in the bond, and the sureties thereon responsible for the official acts of the sheriff; and after that, any act of the commissioners, interfering with those vested rights, was without authority, and, therefore, void. We are of the opinion that there is no error in this cause for which it should be reversed, and judgment is affirmed.-