Opinion
No. 37314.
December 31, 1949.
1. Equity procedure — hearing — decision on factual issue not tendered by the pleadings.
When a bill sets up alteration of a deed as the ground for its cancellation and the answer denies the alteration and avers that the only irregularity was in an error made by the clerk in recording, a decree may not be based upon the theory that even if altered, the deed as altered conformed to the intention of the parties when it was originally made — the proper issue in such case being alteration ven non.
Headnote as approved by Alexander, J.
APPEAL from the chancery court of Wayne County; THOMAS Y. MINNIECE, Chancellor.
W.M. Hutto, for appellants.
The sole question in issue in this case is whether or not the altering of the description in the original deed voided the instrument. It is not a bill to reform an instrument, but a bill to cancel an instrument that the proof shows was changed or altered after its execution and delivery, without the consent of the grantor, and it is our contention that the alteration or changing of the instrument after execution constituted a material alteration.
It is held in Upton v. Bush, et al., 141 Miss. 660 that the test of what constituted a material alteration is not whether the alteration is beneficial or injurious to party sought to be charged, but whether altered contract is one entered into, and the changing the name of a payee in a note, without the knowledge of the holder is a material change, and avoids the note. Any alteration of an instrument that materially affects the instrument, whether note, contract, deed, or any other instrument that affects the subject matter of the instrument, would avoid the instrument.
In the case at bar, the description of the entire 40-acre tract was altered so as to be a different 40-acre tract in the deed other than that which was originally described therein, and it is our contention that this avoided the instrument.
It is a well established rule that any material alteration of a written instrument, after the execution, intentionally made or caused, whether directly or indirectly, by the owner or holder, or by one having a beneficial interest therein, without consent of the party sought to be charged thereon, renders the instrument void as between such non-consenting parties and the person responsible for the alteration, or those claiming through him. Foot v. Hamrick, 70 Miss. 157, 2 Am. Jur. Vol. 601, No. 9; McRaven v. Chisler, 53 Miss. 542; Citizens National Bank v. Williams, 35 A.L.R. 464; 2 Am. Jur. pages 636, 672, Sections 48 and 112: 2 C.J. 1204; Pereau v. Fredrick, 17 Neb. 117, 2 C.J. 1204.
It has been held by this court in Merchants and Farmers Bank v. Dent, 59 So. 805, and since this is a short opinion we quote some parts of this opinion in our brief: 1. Because of the unwarranted changes of the deed of trust, it became void and of no effect. The original instrument executed by appellee was in reality destroyed. It was not the proper paper which they signed and delivered. The appellants have no rights thereunder. It is the rule of law, that the material alteration avoids the instrument. The reason for this rule is given in 2 Cyc. Page 179, as follows, to wit: "First, that no man shall be permitted, on grounds of public policy, to take the chance of committing a fraud without running any risk of loss by the event when it is detected; and second, because the identity of the instrument is destroyed, and to hold one under such circumstances would be to make for him a contract to which he had never agreed, which is especially true in the case of a surety."
W. Vol Jones, for appellee.
The chancellor heard and observed the witness Pittman and carefully examined the original instrument which is alleged to have been altered, and after having heard and observed the witness and after having carefully examined the instrument in dispute, correctly sustained appellee's demurrer or motion to exclude the testimony and dismiss appellant's bill of complaint.
The testimony of the witness is so ambiguous and evasive as to render it worthless in supporting the charge of an alteration of the instrument in question. There is no denial in his testimony that he executed a mineral conveyance for an undivided one-half of the minerals in the SE 1/4 of NW 1/4 of Section 9, Township 6 North, Range 7 West; he denied having executed a conveyance affecting the SE 1/4 of SW 1/4 of said section, township and range and admitted executing a conveyance affecting the NE 1/4 NW 1/4 thereof. His only testimony relative to an alteration was that a letter "n" had been changed to the letter "s". The land described in the original recording of the instrument in Book C, page 308 is "NE 1/4 of SW 1/4" of said section, township, and range; hence it would have been necessary for both of the calls to have been changed, i.e., the "n" and "s" would have been transposed in order for appellee to have gained by an alteration.
There is no dispute, and there can be no doubt that the mineral deed and royalty transfer introduced as Exhibit "1" to the testimony of appellant and as recorded in Book Q page 407 expresses the contract which was entered into between the parties to this suit; hence, assuming that the instrument was changed in the respect testified about, there was no alteration of the contract as such, and much less a material alteration. Upton v. Bush, et al., 141 Miss. 660, 107 So. 284.
Pittman and wife filed their bill to cancel a mineral deed and royalty transfer purportedly from them to appellee upon the ground of forgery or alteration by the grantee. It is alleged that the deed intended to and did convey such interest in the NE 1/4 SW 1/4 of Section 9, T. 6, R. 7 West, in Wayne County; that it was so recorded in 1939; and that it was re-recorded in 1945 bearing a change in description, to wit, the SE 1/4 NW 1/4.
The answer of the defendant denied any alteration, but alleged that the error was due to the mistake of the clerk who placed it of record. It is impossible to determine with certainty from the record whether the language of the two deeds is taken from the originals or the record.
Of course, if there was shown an alteration of the instrument in so material a particular by the grantee without the consent of the grantor, we should be compelled to re-examine the dictum in Foote v. Hambrick, 70 Miss. 157, 171, 11 So. 567, 35 Am. St. Rep. 631, whose conclusions were based upon prior cases dealing with promissory notes. We are not prepared to lend our assent to the right of a grantee in a deed to change a description after recordation and without express consent of the grantor, even though justification for such correction be sought in an innocently frustrated intention of the grantor. Due process of reformation is available and adequate to this end.
Had the learned chancellor found as a fact that the deed had not been altered, an affirmance would probably be indicated since he examined the original deed and we do not have it before us. But this he did not do. His finding, upon which the decree is based, is as follows:
"The Complainant has admitted on the stand that he only owned the particular 40-acres in this section that the deed now describes, although he claims the deed was changed he admits it was changed to conform with the original bargain that he made to sell these minerals. The Court does not see how he can now complain that the deed now speaks the truth, or what was intended at the time it was executed.
"The Court is, therefore, of the opinion the motion should be sustained."
This finding by-passes the defense set up in the answer, that the error was only in the recording. Moreover, the complainant (appellant) did not in the record admit that "it was changed to conform to the original bargain that he had made." Although he stated that he did not own any other lands in Section 9 except the SE 1/4 NW 1/4, he testified that he executed a deed to the NE 1/4 SW 1/4. While such action impugns his status as a claimant to equitable relief by a pleading of his own wrong, and while the court was moved by a finding of estoppel against him, the relief sought was as above stated, not reformation but cancellation as a forgery of altered instrument, to which the defense was mistake in recordation.
We are of the opinion that the factual issue should have been alteration vel non. If no alteration be found, the grantee would be entitled to re-record the instrument. If alteration be adjudged, a decision of the legal effect would then bring into play such factors as the assent of the grantor, and his knowledge of his own mistake, and above all, whether, despite a favorable showing in these respects, a deed may in any event be informally "reformed" after full execution and recordation by the act and at the will of the grantee. We do not pass upon this issue nor forecast what remedies would be available in the event the complaint be maintained and the defense fail. The bill was dismissed upon motion to exclude complainants' testimony. The defendant was not put to proof of the issue she tendered, nor was the cause decided thereon.
We reverse and remand so as to allow these factual issues to be developed and adjudged.
Reversed and remanded.