Scott v. Perry , 140 Miss. 452 ( 1925 )

^* Headnotes 1. Alteration of Instruments, 2 C.J., Section 91. Presumption as to time of alteration of instrument and its effect on burden of proof, see notes in 39 L.R.A. (N.S.) 100, 31 A.L.R. 1455; 1 R.C.L., p. 1042; 1 R.C.L. Supp., p. 314; 5 R.C.L. Supp., p. 59. 2. Alteration of Instruments, 2 C.J., Section 219; 3. Alteration of Instruments, 2 C.J., Sections 192, 194; 4. Appeal and Error, 4 C.J., Section 2869. The appellants Priscilla Scott and her minor children filed their bill of complaint in the chancery court of Sunflower county, whereby they sought to cancel certain deeds and deeds of trust as clouds upon their alleged title to certain lands therein described.

The record legal title of said land was vested in T.E. Perry, one of the appellees, subject to certain deeds of trust in favor of the Netherlands-American Mortgage Bank, the Guaranty Bank Trust Company, and the Mound Bayou State Bank, in liquidation, and the bill of complaint charged that on December 20, 1913, W.P. Kyle and Charles Banks executed a warranty deed conveying the lands involved to Walter Scott, the husband of Priscilla Scott, and the father of the minor complainants, and that the said Walter Scott died on October 23, 1914, leaving the complainants as his sole surviving heirs at law. The bill further charged that, after the death of Walter Scott, Charles Banks, one of the grantors in the said deed, ascertaining the fact that the deed in question had not been filed for record in the chancery clerk's office, secured the deed and erased the name of Walter Scott as grantee therein, and inserted instead the name of Priscilla Scott as the grantee, and that, after such erasure and alteration, the deed was filed for record and properly recorded in the chancery clerk's office. The bill further charged that, after the death of the said Walter Scott, Charles Banks agreed to pay all taxes on the said land until the complainant, Priscilla Scott, had finished paying for the land; that the said Banks allowed the land to be sold for the taxes due for the year 1914; that at this tax sale the lands were purchased by W.W. Cox, and after the death of W.W. Cox were conveyed by his heirs at law to Shelton Allen, an employee of the said Charles Banks; and that the title was taken by Shelton Allen for the use and benefit of Charles Banks. The bill of complaint charges, and the proof shows, that, after the title of said land was taken in the name of Shelton Allen, deeds of trust were executed thereon in favor of the Netherlands-American Mortgage Bank and the Guaranty Bank Trust Company, and that shortly thereafter a deed was executed by Shelton Allen conveying the said lands to Priscilla Scott, one of the appellees herein, subject to the lien of the two deeds of trust mentioned above. Thereafter the said Priscilla Scott remained in possession of said lands, operating the same as her own, and executing deeds of trust thereon from time to time, one of which was to secure an indebtedness due the appellee T.E. Perry. This deed of trust was afterwards foreclosed, and at the foreclosure sale the said T.E. Perry became the purchaser of the lands.

The appellees filed answers to the bill of complaint, and upon the trial of the cause the original deed from W.P. Kyle and Charles Banks was introduced in evidence, and has been transmitted to this court. An inspection of this instrument shows that it was originally wholly typewritten, the name of Walter Scott appearing as the grantee in the original typewritten copy, and that wherever the name of Walter Scott appears in this typewritten instrument it has been scratched across with a pen, and the name of Priscilla Scott inserted with a pen.

The contention of the appellants is that the deed as executed and delivered conveyed the land to Walter Scott, and that the change in the name of the grantee was made after the delivery of the deed for the purpose of defrauding the complainants Priscilla Scott and her minor children, or, in other words, that the deed was altered after the delivery, and if so, upon the death of Walter Scott, the title to the land vested immediately in his heirs at law, who were Priscilla Scott and her two minor children.

The two minor children of Walter Scott, deceased, are entitled to recover their interest in this land, if in fact the deed was executed and delivered to Walter Scott as grantee. The chancellor's decree dismissing the bill is, in effect, a finding that the proof failed to show that the changes or interlineations in the deed were made after delivery, and we are therefore presented with the question of whether the decree is manifestly wrong.

An erasure or interlineation appearing upon the face of an instrument is not an alteration in a legal sense, unless made after the delivery of the instrument, and whether a change or alteration in an instrument was made before or after its execution and delivery is a question of fact to be determined by the jury, or the chancellor, as the case may be. Except in the case of negotiable paper, which is recognized in this state as an exception to the rule, the general presumption is in favor of honesty and fair dealing in all transactions and against the imputation of fraud, and one who assails a deed on account of erasures or interlineations therein has the burden of showing that the erasures or interlineations were made after the execution of the deed. Commercial Railroad Bank v. Lum, 7 How. 420; Ellison v. M. O. Railroad Co., 36 Miss. 572;Wicker v. Jones, 159 N.C. 102, 74 S.E. 801, 40 L.R.A. (N.S.) 69, Ann. Cas. 1914B, 1083; James v. Holdam, 142 Ky. 450, 134 S.W. 435; Brand v. Johnrowe, 60 Mich. 210, 26 N.W. 883;Neil v. Case, 25 Kan. 510, 37 Am. Rep. 259; 2 C.J. par. 194e, p. 1276, and authorities there cited.

In the case at bar the bill charges that the changes or interlineations in the deed were made by Charles Banks, one of the grantors therein, long after the execution and delivery of the deed, and that, after having so altered the deed, the said Charles Banks filed it for record. The only witness offered by the complainants to establish an alteration was Priscilla Scott, one of the complainants, and she testified repeatedly and emphatically that the interlineations in the deed were made by one M.B. Hilton, a notary public, when she made her final payment on the land in the year 1917. The signature of M.B. Hilton to another instrument was introduced in evidence, and was before the chancellor, for comparison of his handwriting with the writing of the party who made the interlineations in the deed, while the record of the deed in the chancery clerk's office, which was introduced in evidence, shows that it was filed for record on the 23d day of October, 1916, and that the interlineations in this deed had been made at that time. The appellant's testimony as to the time when the interlineations were made, which is in conflict with the averments of the sworn bill, is thus by the record conclusively shown to be untrue.

For the appellees, T.E. Perry testified that the deed in question was turned over to him by the complainant Priscilla Scott in the year 1916; that when he first saw the deed the interlineations appeared therein; that the deed had not been acknowledged when it was turned over to him; that he secured the acknowledgment of the grantors, and thereupon filed it for record. The certificate of acknowledgment on this deed bears the same date as the instrument itself, and to that extent contradicts the testimony of this witness as to the time the deed was actually acknowledged. This witness also testified that he was familiar with the handwriting of M.B. Hilton, and that the interlineations appearing on the face of the deed were not in his handwriting.

The chancellor saw and heard these witnesses, and the various records were before him for inspection, and it was his province to pass upon the conflicts and contradictions in the testimony. The testimony is not at all satisfying to us, and we are unable to say that the chancellor was manifestly wrong, in holding that the evidence failed to show that the interlineations in the deed were made after its execution and delivery.

Affirmed.