Woodbury, J.,
delivered the opinion of the court.
The admission made, and the evidence adduced, by the parties in this action, show the title of the demanded premises before the 29th of November, A. D. 1803, to have been vested in Joseph Cheslcy. He is, therefore, entitled to recover, unless Frost has produced competent testimony to shew that the interest of said Joseph was then, or afterwards, conveyed to Thomas Cheslcy, under whom he claims. To prove that the demandant did on that day part with all his interest in the premises, the defendant offered the deed of that date, described in the reported statement of the case. But the subscribing witnesses, called to show its execution, testified that the deed had since, while in grantee’s custody, been altered from five to fifteen acres. Other testimony also was introduced, proving this alteration to have been known to Frost before any purchase by him or by Locke : and both these conveyances, for aught that appeared, were destitute of any adequate consideration.
It is essential, to a proper understanding of the principles which ought to govern this case, that the question presented [147]*147by the facts should be critically distinguished from other questions apparently connected.
The admissibility of the altered deed, as legal evidence to the jury, is, we apprehend, the principal point for our consideration. Because, if that deed be received, it shows the title to have passed from the demandant: and once proved to have passed, the better opinion seems to be, that no subsequent alteration, or cancelling of the conveyance, would re-vest the title. 2 John. 87. — 4 Cruise 368. — 6 M. R. 32, Marshall vs. Fiske. — 8 do. 568. — 6 East 148 — 14 do. 431. The phraseology, also, of the ]yst section of our statute, “declaring the mode of conveyance by deed,”(1) countenances , . t -■ , ... this doctrine: and so. too, does the approved maxim,i ut iisdem modis d-issolvantur quibus constiluantur1 Cruise 411. But if that deed be rejected, no written testimony will remain of any transfer from the demandant; and, consequently, he will be entitled to judgment unless the want of such written testimony can, under the circumstances of this case, be legally supplied by that which is parole. Whether cancelling a deed, then, does or does not revest the title, is far from being the chief point in controversy : for, wherever the title to the demanded premises may in fact be, it is not our province to conjecture, but rather to decide where it appears to be, according to such testimony in the case as we have found competent and admissible.
• That the original grantee, were he the defendant, could not use this deed in evidence, as at present circumstanced, we apprehend to be very obvious, both from principle and authority.
Had the alteration been proved to have happened by the misconduct of the grantor, or of a stranger, or by mistake, the grantee would have been guilty of no wrong, and consequently would deserve to suffer no inconvenience or punishment.
Such an alteration, according to the recent and'best, authorities, would not vitiate the deed. — See them collected in Martindale vs. Follet, Ches., Sep. 1817, ante.
[148]*148But from the absence of all such testimony, connected with the positive proof that the alteration was made while the deed remained in the custody, and the land continued the property of the original grantee, the presumption of reason, as well as of law, is, that the alteration was fraudulent, and made by the grantee himself. 4 D. Sf E. 324, 331.— Perkins, sec. 122, 125. — Shop. T. 69. It was also material, having been in a most essential part of the conveyance, and having greatly extended both its subject matter and value. Martindale vs. Follet, supra.
Such, then, being the character of this alteration, the authorities and principles are uniform, that render the deed wholly void, and inadmissible in evidence.
It seems, also, to be well settled, that, if in a case and from a cause Like the present, a deed becomes inadmissible, no testimony of a parole character is competent to supply its absence. The analogous precedents, on this point,- were fully considered by us in the action before mentioned. Indeed, the rule of evidence is more rigid, if possible, against the admission of parole testimony to aid the defects or remedy the want of a speciality : particularly of one to pass the title to real estate, than in cases like that of Marlindale vs. Pallet, of mere written agreements not made under seal. But between that and the present action, a distinction, supposed to favor the defendant, has been suggested, which arises from the nature of the contracts attempted to be proved by the two altered instruments. There the note was offered as evidence of an executory contract: here the deed, as evidence of an executed one. Yet, if a difference exist between the fraudulent alteration or destruction of instruments evidencing contracts of those two descriptions, in respect to the effects of the alteration on the title of the parties to the subject matter of the contracts ; still the authorities are numerous and clear, that, as a rule of evidence, the instruments, in both cases, become alike void. 11 Coke, PigotVs case. ÚGal. 69.' — Sanders on Uses 259. — Co. Litt. 35. note 7. The elementary writers, and the adjudged cases, Jay down the doctrine generally as to all instruments. Shep. T. 69.
[149]*149The reason, in odium spoliatoris, and to prevent tampering with written securities, on which the rule of law as to this object principally rests, apply, if possible, more strongly to debar deeds, fraudulently altered, from being admitted in evidence, than other writings that áre not executed with' so many solemnities, and are not the sacred assurances to which are entrusted the tenure and safety of most of the landed estates of the country.
The propriety of rejecting parole evidence, to supply the absence of writings destroyed by the wilful misconduct of the party in the case of executed contracts, is well illustrated by the rales of pleading deeds.
A deed, when pleaded, must be pleaded with a profert; or the profert excused by stating the absence of the deeds to be caused by some casualty, or by the misconduct of the opposite party. Phillips’ Evid. 348. — 3 D. if E. 151. — 2 Hen. Bl. 259. But was a profert ever excused by shewing the deed altered or destroyed by the fraud of the person pleading it ? Such being the law in relation to the actual perpetrator of the fraud, is there, under all the circumstances of the present case, any principle that can prevent its application to the present defendant ? The title of Frost is derived from and through the offender, the original grantee : and unless a title in such grantee can he proved by competent evidence, the defendant’s, which depends on that, must of course fall. In proving all derivative titles, such is the usual effect of a failure of any one link in the chain. But it has been contended that Frost himself, not having been the author of the fraudulent alteration, should be excused from its injurious consequences. Be it so.
Free access — add to your briefcase to read the full text and ask questions with AI
Woodbury, J.,
delivered the opinion of the court.
The admission made, and the evidence adduced, by the parties in this action, show the title of the demanded premises before the 29th of November, A. D. 1803, to have been vested in Joseph Cheslcy. He is, therefore, entitled to recover, unless Frost has produced competent testimony to shew that the interest of said Joseph was then, or afterwards, conveyed to Thomas Cheslcy, under whom he claims. To prove that the demandant did on that day part with all his interest in the premises, the defendant offered the deed of that date, described in the reported statement of the case. But the subscribing witnesses, called to show its execution, testified that the deed had since, while in grantee’s custody, been altered from five to fifteen acres. Other testimony also was introduced, proving this alteration to have been known to Frost before any purchase by him or by Locke : and both these conveyances, for aught that appeared, were destitute of any adequate consideration.
It is essential, to a proper understanding of the principles which ought to govern this case, that the question presented [147]*147by the facts should be critically distinguished from other questions apparently connected.
The admissibility of the altered deed, as legal evidence to the jury, is, we apprehend, the principal point for our consideration. Because, if that deed be received, it shows the title to have passed from the demandant: and once proved to have passed, the better opinion seems to be, that no subsequent alteration, or cancelling of the conveyance, would re-vest the title. 2 John. 87. — 4 Cruise 368. — 6 M. R. 32, Marshall vs. Fiske. — 8 do. 568. — 6 East 148 — 14 do. 431. The phraseology, also, of the ]yst section of our statute, “declaring the mode of conveyance by deed,”(1) countenances , . t -■ , ... this doctrine: and so. too, does the approved maxim,i ut iisdem modis d-issolvantur quibus constiluantur1 Cruise 411. But if that deed be rejected, no written testimony will remain of any transfer from the demandant; and, consequently, he will be entitled to judgment unless the want of such written testimony can, under the circumstances of this case, be legally supplied by that which is parole. Whether cancelling a deed, then, does or does not revest the title, is far from being the chief point in controversy : for, wherever the title to the demanded premises may in fact be, it is not our province to conjecture, but rather to decide where it appears to be, according to such testimony in the case as we have found competent and admissible.
• That the original grantee, were he the defendant, could not use this deed in evidence, as at present circumstanced, we apprehend to be very obvious, both from principle and authority.
Had the alteration been proved to have happened by the misconduct of the grantor, or of a stranger, or by mistake, the grantee would have been guilty of no wrong, and consequently would deserve to suffer no inconvenience or punishment.
Such an alteration, according to the recent and'best, authorities, would not vitiate the deed. — See them collected in Martindale vs. Follet, Ches., Sep. 1817, ante.
[148]*148But from the absence of all such testimony, connected with the positive proof that the alteration was made while the deed remained in the custody, and the land continued the property of the original grantee, the presumption of reason, as well as of law, is, that the alteration was fraudulent, and made by the grantee himself. 4 D. Sf E. 324, 331.— Perkins, sec. 122, 125. — Shop. T. 69. It was also material, having been in a most essential part of the conveyance, and having greatly extended both its subject matter and value. Martindale vs. Follet, supra.
Such, then, being the character of this alteration, the authorities and principles are uniform, that render the deed wholly void, and inadmissible in evidence.
It seems, also, to be well settled, that, if in a case and from a cause Like the present, a deed becomes inadmissible, no testimony of a parole character is competent to supply its absence. The analogous precedents, on this point,- were fully considered by us in the action before mentioned. Indeed, the rule of evidence is more rigid, if possible, against the admission of parole testimony to aid the defects or remedy the want of a speciality : particularly of one to pass the title to real estate, than in cases like that of Marlindale vs. Pallet, of mere written agreements not made under seal. But between that and the present action, a distinction, supposed to favor the defendant, has been suggested, which arises from the nature of the contracts attempted to be proved by the two altered instruments. There the note was offered as evidence of an executory contract: here the deed, as evidence of an executed one. Yet, if a difference exist between the fraudulent alteration or destruction of instruments evidencing contracts of those two descriptions, in respect to the effects of the alteration on the title of the parties to the subject matter of the contracts ; still the authorities are numerous and clear, that, as a rule of evidence, the instruments, in both cases, become alike void. 11 Coke, PigotVs case. ÚGal. 69.' — Sanders on Uses 259. — Co. Litt. 35. note 7. The elementary writers, and the adjudged cases, Jay down the doctrine generally as to all instruments. Shep. T. 69.
[149]*149The reason, in odium spoliatoris, and to prevent tampering with written securities, on which the rule of law as to this object principally rests, apply, if possible, more strongly to debar deeds, fraudulently altered, from being admitted in evidence, than other writings that áre not executed with' so many solemnities, and are not the sacred assurances to which are entrusted the tenure and safety of most of the landed estates of the country.
The propriety of rejecting parole evidence, to supply the absence of writings destroyed by the wilful misconduct of the party in the case of executed contracts, is well illustrated by the rales of pleading deeds.
A deed, when pleaded, must be pleaded with a profert; or the profert excused by stating the absence of the deeds to be caused by some casualty, or by the misconduct of the opposite party. Phillips’ Evid. 348. — 3 D. if E. 151. — 2 Hen. Bl. 259. But was a profert ever excused by shewing the deed altered or destroyed by the fraud of the person pleading it ? Such being the law in relation to the actual perpetrator of the fraud, is there, under all the circumstances of the present case, any principle that can prevent its application to the present defendant ? The title of Frost is derived from and through the offender, the original grantee : and unless a title in such grantee can he proved by competent evidence, the defendant’s, which depends on that, must of course fall. In proving all derivative titles, such is the usual effect of a failure of any one link in the chain. But it has been contended that Frost himself, not having been the author of the fraudulent alteration, should be excused from its injurious consequences. Be it so. He is excused from all the personal consequences; the liability to an indictment for forgery. But consequences that are not personal, yet reach and taint the title, are inseparable from it ; and, of course, accompany the title into any hands where it may chance to pass. There would be some plausibility in the objection, had the alteration been made after the conveyance to Frost: for acts done at that time, by the original grantee, would, as to Frost, resemble the acts of a stranger. Thus [150]*150the alteration of a promissory note by the payee, after it had been negotiated, and without the knowledge of the holder, ought not to prejudice the latter, because the payee at that time possessed, as to the holder, the character of a stranger. But if fraudulently altered, by the payee, before the negotiation, is not the note as void in the hands of a holder as in those of the payee himself? Nor would the situation of the holder of such a note be any worse than that of the holder of a note obtained by duress, or tainted by usury. Neither holder is without a remedy ; nor is a purchaser of real estate without one, if secured as he may be by covenants of warranty.
We are aware that the books furnish precedents, where the foulness»«f a transaction in its origin does not defeat the claims of subsequent parties in interest. Those precedents, however, were founded on frauds in law, as sales without an adequate consideration, &c. But we have discovered no such precedents, where the fraud consisted in the execution or alteration of the instrument containing the contract. Nor has any- case occurred to us, in which a fraud of any kind was originally perpetrated, and a subsequent possessor of the contract or property was exonerated from the injurious consequences of the fraud, provided he possessed a full knowledge of its existence, and did not, as a purchaser or creditor, paya full consideration. We choose to rest the decision, not on the general principle alone, but on that as connected with the circumstances last mentioned. For the case finds full knowledge in Frost of the alteration, and no proof whatever by him of the payment of an adequate price for the demanded premises. He must suffer, then, all the civil consequences of the original grantee’s fraud. The writing, therefore, which purports to be a deed from Joseph Ches-ley to Thomas Chesley, is not, under the facts shewn, admissible in evidence ; and as its absence cannot be supplied by parole proof, the defendant has furnished no competent testimony that the title to the premises has ever passed from the demandant. Consequently judgment must be entered on the verdict.
Richardson', C. J!, having been of counsel, did not sit.