Pullen v. Shaw, 14 N.C. 238, 3 Dev. 238 (1831)

Dec. 1831 · Supreme Court of North Carolina

14 N.C. 238, 3 Dev. 238

John W. Pullen v John Shaw adm’r. of W. S. Roberts.

Ail alteration in a deed, which, is prejudicial to the obligee, as where the date was altered so as to deprive him of one year’s interest, is presumed to have been made before the execution.

Debt upon the following bond of the defendant’s in-testate : “ One day after date, I promise to pay J, W. P. the just sum of nine hundred and eighty seven dol-il lavs fifty seven cents, for value received. Witness my i! hand and seal, this 11th November, 1821.”

Plea — non est factum, upon which the cause was tried •before Swaist, Judge, at Wake, on the last circuit.

The defendant contended,

1st. That the note was a forgery.

2d. That the obligor and obligee had dealings in the bank, and that the plaintiff’s intestate had signed the paper in blank with the view of being used, upon applying for a discount, and that the plaintiff had fraudulently filled up the blank signature.

3d. That the bond had been altered, having been originally, 11th November, 1820, instead of 1821.

Upon those points many witnesses were examined, and the examinations certified with the record, it was manifest upon inspection that the date had been altered. The body of the note and the erasure was in the plaintiff’s handwriting, and the defendant attempted to prote that the alteration benefited the plaintiff by rendering an admission of his, concerning the accounts between him, and the intestate, consistent with the date to which it was altered.

The counsel for the deiendant moved the court to instruct the jury, that as the bond on its face appeared to be altered, it was incumbent on the plaintiff to shew its fairness. But his Honor, leaving the two first grounds of defence to the jury upon the facts, charged them that if the plaintiff had, after the execution of the bond altered the date, without the knowledge and consent of the ob-ligor, he could not recover. Á verdict was returned for the plaintiff, and the defendant appealed.- -• ■

Sea well and Gaston, for the defendant,

argued that an erasure or alteration in a deed, in the absence of proof; was presumed to have been made before execution. (10 Coke, 92 b note. Bac. M. Evidence F. Henman v. Dickinson. 15 Eng. C. L. 407).

Badger and W. H. Maywood, contra,

cited 12 Vin. Jib. Evidence 2 a 2 pi. 5. p. 50. Flower v. Castle, (Keble 121). Morris v. Vanderen,' (1 Dal. 674). Cruise Digest Deed, c. 26, s. 40. Shep. Touch. 6$. Chitty on Bill's 105, 106. 107. Bane’s Al). Deed.

' Henderson, Chief-Justice.

Erasure avoids a deed wjien ma([e ¡jy títe party claiming a benefit under it, even if it he in an immaterial -part; if made by a stranger, in á material part, it also avoids the deed ; if hj accident, it does not. Formerly, the court judged of an erasure by inspection — latterly, the jury do. In judging by inspection, the court governed itself as juries do now, by probabilities in the absence of positive proof. If the alteration on the erased part was in the handwriting of the obligee or a stranger, and beneficial to the obligee, the court adjudged it an erasure, that is, an alteration made after the execution, and avoided the deed. If prejudicial to the obligee, the court adjudged it no erasure, that is, made before execution, and did not avoid -the deed. If in'the handwriting of the obligor either way, they adjudged it no erasure, that the alteration was made before execution, and did not avoid the deed. Juries are now governed by the same rules. In the case before us, the date of the bond is altered, and it is made ■payable in 1821, instead of 1820, as it is said, is evident from the erasure not being complete, as appears from an inspection of the deed, and the alteration is in the handwriting of the obligee, and .prejudicial to the obligee ; for he loses one year’s interest. It is payable from the date, or from a fixed period from the date. One of the .rules before mentioned, to wit, that if the alteration is prejudicial to the obligee, though in his handwriting, it .is no erasure, determines this case, as it is presumed that the alteration was made before execution. If the question was to be decided * by -the court, as formerly, wc should.pronounce it to be no erasure, in the absence of all evidence dehors the deed, the jury were properly instructed to pronounce it so. The plaintiff has failed in his evidence to prove, if that was his object in putting it „ on l.he record, that the alteration was beneficial to the obi.gee, by showing that he thereby avoided the effect of lvis admissions as to the state of the account against the defendant, by changing the date from 1820 to 1821.

Per Curiam. — Judgment astirmeb-