Burnham v. Ayer , 35 N.H. 351 ( 1857 )

Fowler, J.

Although a different rule prevails in other jurisdictions, it has been holden, and may be regarded as settled in this State, that in the absence of evidence or circumstances from which an inference can legitimately be drawn as to the time when it was actually made, every alteration of an instrument will be presumed to have been made after its execution. 1 Greenleaf’s Evidence, sec. 564; Hill v. Barnes, 11 N. H. 895.

A material alteration, without the assent of the party to be affected by it, renders the instrument void as to him. Farmer v. Rand, 2 Shepley 225; Smith v. Crooker, 5 Mass. 538.

An immaterial alteration, which does not vary the meaning of an instrument, does not avoid it, though made by the party claiming under it. Nichols v. Johnson, 10 Conn. 12; Hatch et al. v. Hatch et al., 9 Mass. 307; 1 Greenl. Ev., secs. 567, 568, and authorities; Smith v. Dunham, 8 Pick. 246; Granite Railway Co. v. Bacon, 15 Pick. 239; Pequaquet Bridge v. Mathes, 8 N. H. 139.

Whether an alteration is material or immaterial, is a question of law for the court, and it is error to leave that question to the jury. Bowers v. Jewell, 2 N. H. 543; Steele v. Spencer, 1 Peters 552; Stephens v. Graham, 7 Serg. & Rawle 508; Tidmack v. Grover, 1 Maule & Selwyn 735; Woodworth v. Bank of America, 9 Johnson 396.

If the law would have supplied the words omitted, and after-wards inserted by the party holding an instrument, his own insertion of them will not vitiate the instrument, for the assent of the maker, grantor or obligor, to the alteration in such cases, will be presumed. 1 Greenl. Ev., secs. 567, 568, and authorities; Hunt v. Adams, 6 Mass. 519-522; Waugh v. Bus-sell, 5 Taunton 707; Hale v. Russ, 1 Greenl. 384; Knapp v. Maltby, 13 Wend. 587; Brown v. Pinkham, 18 Pick. 172.

So an alteration, in an immaterial part of the instrument, is itself immaterial. Same authorities.

In the case before us, the alteration of the word “ southeasterly ” to “ south-westerly,” was immaterial on both these grounds. The case finds that the line must necessarily proceed south-ivesterly_from the preceding angle, in order to go “by Moses Currier’s land,” and in order to run around the tract of land clearly intended to be described in the deed. The law, then, would have supplied the word introduced by the alteration, on the familiar principle of construction, that, in the description of land in a deed or will, fixed monuments govern rather than courses and distances. Smith v. Bodge, 2 N. H. 303; Drew v. Drew, 8 Foster 496, and authorities.

Upon the same principle of construction, it was wholly immaterial, to the perfection of the description and the validity of the deed, whether “ south-easterly” or “ south-westerly” were written in this portion of the deed, or whether nothing whatever were written there, as the fixed monument, “ Currier’s land,” must have governed and controlled in any event. Drew v. Drew, ubi supra.

There can, therefore, be no doubt of the correctness of the ruling below, as to the immateriality of the alleged alteration.

And we are equally clear as to the competency of the deed from the defendant’s mother to him, written and subscribed as it was by himself, as tending to explain and contradict the receipt in full of all demands, relied upon to defeat the plaintiff’s mortgage.

That a receipt, so far as it is evidence of the payment or discharge of a debt, is open to explanation and contradiction in any proper way, and by any competent evidence, is too familiar to need illustration or the citation of authorities. An admission, had, or, as in this case, incidental, by the defendant at the date of the receipt, or subsequently thereto, that the mortgage debt was not, and was not intended to be embraced by it, was certainly competent evidence to explain and contradict the receipt. His-taking a deed, wherein the mortgage was recognized as an existing incumbrance upon the land, had some tendency to show a recognition by the defendant of the existence of the mortgage debt, notwithstanding the receipt in full. It was an indirect, incidental admission by him of its continued existence and validity. And it seems quite apparent, that had the deed been written and executed by a stranger in the absence of the defendant, and afterwards, without objection, accepted by him, his receiving title under a deed wherein the mortgage and mortgage debt were recognized as valid subsisting claims upon the land, unexplained, would have been competent, though perhaps slight evidence, to contradict the effect of the receipt, and show that the mortgage debt was not included in it. But when the deed was shown to be from his own mother, in his own hand-writing, and subscribed by him for his mother, its force and weight, as such evidence, were greatly increased. It was, therefore, properly admitted.

.The objections to the rulings below not being sustained, there must be

Judgment on the verdict.