The opinion of the court was delivered,
by Williams, J.
The first question presented by this record arises on the admission in evidence of the deeds to Morgan and Maholm, under which the defendant claims title to the lot in controversy.
When first offered, they were rejected on account of material alterations not noted in the attestation clause, which were apparent on their face. The subscribing witness was then called to account for the alterations, and instead of showing that the interlineation in the deed to Morgan was made before its execution and delivery, his testimony tended to prove that it was made afterwards, without the knowledge and consent of the grantor. He said: “lam a witness to this deed. It is written by me. I made the interlineation of the words ‘along an alley.’ I made the interlineation at the request of James Morgan after Greneral Robinson had told me to leave alleys opposite the alleys in his plot. It was done after the deed was .executed and delivered to Morgan. I had no authority to make the interlineation except by his directing me to leave alleys opposite the alleys in his plan. I'was acting as agent for Greneral Robinson in selling lots. The alteration was made very shortly after the cleed was delivered to Morgan. I know that Morgan brought the deed back to me after he got it, and wanted me to make the interlineation; I told him it was no use. He insisted on it being done, and I.made it.” If the interlineation apparent on the face of the deed rendered its appearance suspicious, the testimony nf the scrivener and subscribing witness entirely destroyed its character as an instrument of evidence, and it ought to have been rejected. But having been admitted, the jury should have been instructed in accordance with the plaintiff’s second point, that the evidence in respect to the interlineations was not sufficient to show that it was made with the assent or authority of the grantor, and the jury must [16] reject it as an unauthorized interpolation. With respect to the interlineation in the deed to Maholm, the witness said: “ I wrote this deed also; I cannot say whether the words ‘ a twenty-feet,’ interlined are in my.handwriting or not. The word ‘alley’ is in my handwriting.” The defendant then, showed by the testimony of Arthur Hobson and Robert Ray, that they were acquainted with the handwriting of the witness, and that the words “ a twenty feet,” interlined in the deed, are in his handwriting, and he also showed by the testimony of Hobson-, that in 1858 or 1859, he called on General Robinson “ to know if the lot in dispute was an alley or private property, and that he stated that he had no property there; that it was laid out for the purpose of these lots, the Morgan iots.” It is not easy to see how this testimony relieved the deed from the suspicion that led to its rejection when first offered. It is true, that it tends to show that the interlineation is in the handwriting of the scrivener, but this must have been apparent on inspection of the deed, if, as stated in defendant’s paper-book. “ Everybody in the court-room would have sworn to it by comparison with the context.”
The declaration of Robinson that the alley was laid out for the purpose of the Morgan lots has little or no bearing on the question, whether the interlineation in the deed to Maholm was made before its execution and delivery or afterwards with his knowledge and consent. As it was beneficial to the defendant, the bur-then was on him of showing that it was properly made. If it appeared to be written with the same pen and ink as the body of the instrument, the natural inference would be that it was made before the sealing and delivery of the deed. But if it did not appear to be made with the same pen and ink, no such presumption would arisen and other evidence would be required to explain it. The original deed was not produced before us on the argument, and it was not shown by any evidence given on the trial whether the interlineation appeared to be written with the same pen and ink as the body of the deed or not, we cannot therefore say that the court erred in admitting it. Whatever may have once been the rule, the law does not now presume that an interlineation in a deed is a forgery, nor that it was made after the execution of the instrument, but leaves it as a question of fact to be determined by the jury. As was said in Jordan v. Stewart, 11 Harris 249, so long as any ground of suspicion is apparent on the face of the instrument, the law presumes nothing, but leaves the question as to the time when it was done to be ultimately found by the jury upon proof to be adduced by him who offers it in evidence.
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The opinion of the court was delivered,
by Williams, J.
The first question presented by this record arises on the admission in evidence of the deeds to Morgan and Maholm, under which the defendant claims title to the lot in controversy.
When first offered, they were rejected on account of material alterations not noted in the attestation clause, which were apparent on their face. The subscribing witness was then called to account for the alterations, and instead of showing that the interlineation in the deed to Morgan was made before its execution and delivery, his testimony tended to prove that it was made afterwards, without the knowledge and consent of the grantor. He said: “lam a witness to this deed. It is written by me. I made the interlineation of the words ‘along an alley.’ I made the interlineation at the request of James Morgan after Greneral Robinson had told me to leave alleys opposite the alleys in his plot. It was done after the deed was .executed and delivered to Morgan. I had no authority to make the interlineation except by his directing me to leave alleys opposite the alleys in his plan. I'was acting as agent for Greneral Robinson in selling lots. The alteration was made very shortly after the cleed was delivered to Morgan. I know that Morgan brought the deed back to me after he got it, and wanted me to make the interlineation; I told him it was no use. He insisted on it being done, and I.made it.” If the interlineation apparent on the face of the deed rendered its appearance suspicious, the testimony nf the scrivener and subscribing witness entirely destroyed its character as an instrument of evidence, and it ought to have been rejected. But having been admitted, the jury should have been instructed in accordance with the plaintiff’s second point, that the evidence in respect to the interlineations was not sufficient to show that it was made with the assent or authority of the grantor, and the jury must [16] reject it as an unauthorized interpolation. With respect to the interlineation in the deed to Maholm, the witness said: “ I wrote this deed also; I cannot say whether the words ‘ a twenty-feet,’ interlined are in my.handwriting or not. The word ‘alley’ is in my handwriting.” The defendant then, showed by the testimony of Arthur Hobson and Robert Ray, that they were acquainted with the handwriting of the witness, and that the words “ a twenty feet,” interlined in the deed, are in his handwriting, and he also showed by the testimony of Hobson-, that in 1858 or 1859, he called on General Robinson “ to know if the lot in dispute was an alley or private property, and that he stated that he had no property there; that it was laid out for the purpose of these lots, the Morgan iots.” It is not easy to see how this testimony relieved the deed from the suspicion that led to its rejection when first offered. It is true, that it tends to show that the interlineation is in the handwriting of the scrivener, but this must have been apparent on inspection of the deed, if, as stated in defendant’s paper-book. “ Everybody in the court-room would have sworn to it by comparison with the context.”
The declaration of Robinson that the alley was laid out for the purpose of the Morgan lots has little or no bearing on the question, whether the interlineation in the deed to Maholm was made before its execution and delivery or afterwards with his knowledge and consent. As it was beneficial to the defendant, the bur-then was on him of showing that it was properly made. If it appeared to be written with the same pen and ink as the body of the instrument, the natural inference would be that it was made before the sealing and delivery of the deed. But if it did not appear to be made with the same pen and ink, no such presumption would arisen and other evidence would be required to explain it. The original deed was not produced before us on the argument, and it was not shown by any evidence given on the trial whether the interlineation appeared to be written with the same pen and ink as the body of the deed or not, we cannot therefore say that the court erred in admitting it. Whatever may have once been the rule, the law does not now presume that an interlineation in a deed is a forgery, nor that it was made after the execution of the instrument, but leaves it as a question of fact to be determined by the jury. As was said in Jordan v. Stewart, 11 Harris 249, so long as any ground of suspicion is apparent on the face of the instrument, the law presumes nothing, but leaves the question as to the time when it was done to be ultimately found by the jury upon proof to be adduced by him who offers it in evidence.
'But a graver question is as to the effect of the deeds, if the interlineations were properly made as found by the jury. Did the deeds, as thus interlined, convey in fee simple the lot in question to the grantees under whom the defendants claim title ? They [17] do not profess to convey any title to the lot, nor any right of way over it. The deed to Morgan conveys lots No. 271 and 272,. and the deed to Maholm, lots 268 and 269, and in express terms they convey nothing more. If they convey the right to the use of the lot as an alley, it is by way of estoppel, and not by express grant. The deed to Morgan describes the line between lot No. 271 and the lot in dispute, No. 270, as running “ along an alleyand the deed to Maholm describes the line between lots No. 269 and No. 270, the lot in controversy, as running along “a twenty-feet alley.” But on the recorded plan, which is referred to and recited in both deeds, no alley is laid down between lots 269 and 271, nor is there any alley adjoining either of these lots. The lot in dispute lies between them, and is laid down on the plan as lot No. 270. The plan being referred to in the deed, is as'much a material and essential part of the conveyance, and has the same force and effect, as if it were incorporated into the deed: Borough of Birmingham v. Anderson, 12 Wright 253; and it shows that the closing boundary line of these lots, as called for in the deeds, is a misdescription. Besides, it is admitted that no alley was ever opened or laid out upon or over the lot in dispute. Nor was it ever used as an alley, either by the public or by the owners of the adjoining lots. Shortly after the sale to Morgan, he enclosed it with lots No. 271 and 272, and used the whole enclosure as a cattle-pen down to the time of the trial* The defendant, as we have already said, is not entitled to the use of the lot as an alley by virtue of an express grant of it in either of the deeds. And it is very doubtful whether he is entitled to its use as an alley under the misdescription of the lots granted by the deeds: Commonwealth v. McDonald, 16 S. & R. 390. But be this as it may, if. the defendant is entitled to the use of the lot as an alley, he is only entitled to it on the principle of estoppel: O’Linda v. Lothrop, 21 Pick. 292. And if so, has he anything more than an easement in the lot or right of way over it ? Has he the title to the land in fee simple because the adjoining lots granted by the de.eds are described as bounded by “an alley” or a “twenty-feet alley ?” The court below so decided on the authority of Paul v. Carver, 2 Casey 223. The doctrine of that case is this: A conveyance of land bounded by the side.of the street gives the grantee a title to the centre of it, if the grantor had title to that extent and did not, expressly or by clear implication, reserve it, although the distances set forth in the deed bring the line only to the side of the street; and if such street be vacated, the grantee will have the right to extend his line to the middle of it: Cox v. Freedley, 9 Casey 124. But in this case there was no alley or street by which the lots were bounded. The recorded plan, which is to be taken as a part of the defendant’s title, shows that the ground in question is a lot, and not a street. And it is admitted that no [18] alley was ever laid out over tbe lot, or ever used by the public or by private individuals. There is, then, no ground or reason for the application of the rule laid down in Paul v. Carver to this case. It would work injustice to the parties; and its establishment as a principle to govern such a case as this would be productive of mischief. The utmost interest, then, that the defendant could take under the deeds was an easement or the right to the use of the lot as an alley. But if the defendant had the right of way over the lot, his act in fencing it up and using it as a cattle-yard, was sufficient to extinguish it: 3 Kent’s Com. 449; Taylor v. Hampton, 4 McCord 96; Corning v. Gould, 16 Wend. 531. But if not extinguished by these acts, it was unquestionably extinguished by the decree of the Court of Quarter Sessions vacating, under the provisions of the Act of May 8th 1854, the private alley over the lot, if any such had been granted by the deeds of Robinson to Morgan and Maholm. The court below, therefore, erred in deciding the reserved question in favor of the defendant.
But in reversing the judgment we cannot direct it to be entered in favor’of the plaintiff, for the reason that the verdict is for the defendant. When a verdict is taken subject to the opinion of the court in banc upon 'questions of law reserved, it should be rendered in favor of the plaintiff; otherwise if the decision be for the plaintiff, no judgment can be entered in his favor. The facts upon which the questions arise should be found by the jury or agreed upon by the parties, and should be distinctly stated, as well as the questions raised upon them ; and the judgment to be pronounced upon their solution should also be specified, as in a case stated.
Judgment reversed, and a venire facias de novo awarded.