Herrick v. Malin.

common with himself; and what follows shews that the property conveyed, is all his right, title and interest to lands in said town, to wit, township number seven. If however, the alteration can be supposed to alter the sense and meaning of the deed, then it is incumbent on the party producing it to give satisfactory explanation, 2 Wendell, 555, unless the estate is such an one as may have existed without a deed, and has vested by transmutation of possession; in which case the estate continues, although the deed be destroyed, 8 Cowen, 71. The grantor in this case died soon after executing the deed. His widow remained a number of years in possession, as was understood, under Rachel Malin, who was the reputed owner of the lot."

The defendant sued out a writ of error removing the record into this court, where the case was argued by

S. Stevens, for the plaintiff in error.

D. B. Prosser & M. T. Reynolds, for the defendant in

error.

After advisement, the following opinion was delivered, in reference to the question of alteration of the deed.

By the CHANCELLOR. The first question to be considered in this case is, whether the supposed alteration in the deed of Hathaway to Malin, even if made by her after its execution, avoided the deed so that she could not recover the estate. In Jackson v. Malin, 15 Johns. R. 293, the supreme court held that an immaterial alteration in a will devising real estate, if made by the devisee, rendered the devise void; but as the verdict of the jury had not found whether the will was or was not altered by the devisee, a new trial was granted. It is evident, from the report of that case, that the learned judge who delivered the opinion of the supreme court was misled by Pigot's case, 11 Coke's R. 26, which was the only case cited in support of his opinion, and that he did not advert to the distinction between an alteration in a mere bond or covenant, where the remedy of

Herrick v. Malin.

the party is by an action upon the instrument itself, in which action the plaintiff cannot recover if he has cancelled or altered the obligation so that it is not the same which the defendant executed, and an alteration in a deed or will under which a legal title had become vested in the grantee or devisce by transmutation of possession either by livery of seizin or under the statute of uses. Pigot's case was an action of debt upon a bail bond given to the sheriff without the addition of his name of office, and was altered by a stranger by interlining the plaintiff's name of office; and by referring to Bulstrode's report of the same case, 2 Bulst. R. 246, it will be seen that all the cases cited by Trattman, the defendant's counsel, were cases of that description, and not cases in which the question arose as to the title to real estate which had passed by the deed. The resolutions of the court must, therefore, be taken in reference to the case which was then under consideration. In that view the resolutions in Pigot's case only amount to this: that where the obligee in a bond, or the grantee in a deed, alters the bond or deed in an immaterial part, he cannot sue upon the bond, or bring an action upon the covenants in his favor in the deed, as, upon the plea of non est factum the instrument produced in evidence will not appear to be the same deed which was executed by the defendant. But even in these cases it appears to be a mere technical rule, and as Ch. J. . Dallas says, the meaning of the rule was rather to ascertain the identity of the instrument than to guard against fraud, It was accordingly held in the case of Saunderson v. Symons, 4 J. B. Moorc's R. 42, that an immaterial alteration of a policy of insurance, by the assured, would not prevent his recovering against the underwriter. Such, I apprehend, must be the rule in relation to either a material or immaterial alteration in a deed, where the deed is not offered in evidence for the purpose of recovering thereon as upon a contract, but merely to show that the legal title to property had once passed by such deed when it existed as an unimpeachable instrument before alteration.

As early as 1676, it was said by the court of king's bench in England, that a rent or other grant was not lost by the

Herrick v. Malin.

destruction of the deed, as was a bond or chose in action. Woodward v. Aston, 1 Vent. R. 297. And Mr. Preston says, it seems quite clear that no deed, which has once passed an estate or interest, can be avoided so as to divest that estate or interest by the cancellation of the deed; but bonds, or other executory instruments which are merely obligatory on the person, may have their effect defeated by an intentional cancellation of the deed by the obligee. 3 Prest. on Abs. 103. The case of Doe v. Bingham, in the court of king's bench, 4 Barn. & Ald. 672, shows that, where a legal title has passed under a deed, the grantee in such deed may give it in evidence in an ejectment suit, as proof of such title, although he has subsequently altered the deed in an immaterial part, without the consent of the grantor. See also Doe v. Hirst, 3 Starkie's R. 60. In all the American cases cited on the argument, with the exception of Jackson v. Malin, the same principle appears to be maintained, and particularly in those of Lewis v. Payne, 8 Cowen, 71; Jackson v. Jacoby, 9 id. 125; Jackson v. Gould, 7 Wendell, 364; and in Jackson v. Chase, 2 Johns. R. 84, in our own courts. I conclude, therefore, that the immaterial alteration in the deed from James Hathaway to Rachel Malin, whether made by her or by a stranger, and whether before or after the execution of the deed, did not divest her title, or prevent the deed from being evidence that the title had passed to her from the grantor.

From the conclusion at which I have arrived on this question, it is not necessary for me to consider whether in the case of an alteration of a written instrument, apparent from the face of the paper itself, the legal presumption is, that it was so altered subsequent to its execution, by the party in whose possession it was when the alteration was first discovered. It may be proper, however, to say that, in reference to material alterations, it seems to be proper to call upon the party claiming the benefit of such apparent alterations as a part of the original instrument at the time it was executed, or who claims that the instrument is still binding on the party whose name is upon it, for some explanation as to the apparent alteration. Such is unquestionVOL. XXII.

50

Herrick v. Malin.

ably the rule in relation to deeds of more than thirty years standing, which are offered in evidence without proof as ancient deeds. Jackson v. Osborn, 2 Wendell, 559. Bull. N. P. 255. Roscoe on Ev. 89. And perhaps the legal rule that a felony is not to be presumed, ought not to exempt the party producing the deed from giving some further explanation, where the deed is proved without producing and examining the subscribing witness, or where he has no recol lection on the subject of the supposed alteration. The jury certainly would be authorized to find in opposition to that part of the deed, if the apparent alteration was of such a character as to create a strong suspicion that it had been fraudulently made, unless some explanation was given. The case of Knight v. Clements, 2 Will. Wool. & Hodg. R. 290, goes further; for the court of queen's bench there decided that where a bill of exchange was written upon a two months' stamp payable in two months, but it appeared upon inspection that the word three had been originally written and erased, and two written upon the erasure, the holder of the bill must prove that the alteration was made before the bill was negotiated. A similar decision was made by the court of common pleas in the case of Harmon v. Dickinson, 5 Bing. R. 183. In Bishop v. Chamber, Moody & Malk. 117, Lord Tenterden, though he held that in such cases it lay upon the plaintiff to account for the suspicious form and obvious alteration of the instrument, submitted it to the jury to decide from the inspection of the note, whether it had been altered after its completion; and in the subsequent case of Taylor v. Moseley, 6 Carr. & Payne, 273, where the acceptance of a bill had apparently been altered, it appears to have been considered a proper case to be left to the jury to determine whether the alteration had been made after the acceptance of the bill by the defendant. The case cited from Keble, however, shows that where there is a mere interlineation in a deed, without anything to excite a suspicicion that it was not made at the time the deed was drawn and executed, the reasonable presumption is, that it was made before the deed was executed. 1 Keble, 22, pl. 62. 12 Vin. Abr.

Donaldson v. Wood.

58, S. C. For these reasons I think the circuit judge did not err in refusing to charge the jury as requested by the defendant's counsel, in relation to the supposed alteration of the deed from Hathaway to the plaintiff. The chancellor then, after disposing of the other questions in the case, comes to the conclusion that the judgment of the supreme court ought to be affirmed.

On the question being put, Shall this judgment be reversed? All the members of the court (twenty being present) answered in the negative. Whereupon the judgment of the supreme court was affirmed.

DONALDSON V. WOOD & WOOD.

The acts of the legislature of 1830 and 1832, giving a lien for work done or materials furnished in the erection of buildings in the city of New York upon the fund in the hands of the owner of the buildings due to the original contractor, apply only to the creditors of the original contractors; a creditor of a sub-contractor can claim nothing under these acts. An account verified by the oath of the claimant is an attested account within the meaning of those acts.

It seems, that work done and materials found, although not applied to the building itself, come within the purview of the acts, if connected with the building and embraced in the contract.

ERROR from the supreme court. The question in this case was, whether a creditor of a sub-contractor is entitled to the benefit of the acts of the legislature, passed in 1830 and 1832, giving a lien for work done or materials furnished in the erection of buildings in the city of New York upon the fund in the hands of the owner of the buildings. See Statutes of 1830, p. 412, and Statutes of 1832, p. 181. The facts of the case are fully stated in 17 Wendell, 550, et seq. The creditor of a sub-contractor brought an action in the New York common pleas and recovered judgment, which was reversed by the supreme court. See the opinion delivered by the CHIEF JUSTICE, 17 Wendell, 551, et seq. The