Piercy's Heirs v. Piercy , 5 W. Va. 199 ( 1872 )

Moore, J.

The plaintiff alleges in his bill, that “At the time the deed of trust was executed, the mill property aforesaid was jointly owned hy said Beckett, and John Piercy, Jr., the said Beckett having purchased the interest of Andrew J. Piercy in the same, and the said Andrew J. and John Piercy, Jr., having obtained a deed therefor from the said John Piercy, Sr. Some time after the deed of trust was executed, the said Beckett sold his interest in said property to said John Piercy, Jr., and he, the latter, became paymaster to the said John Piercy, Sr., of the debt aforesaid; at least he promised said Beckett to pay said debt, or to take the property subject to said debt and settle it with his father as part of the purchase money. He agreed, in other words, to procure for said Beckett his bond aforesaid. He did accordingly procure the bond and deliver it to said Beckett, saying that he told his father to let him have the bond, and as soon as he got the thing arranged with Beckett, that he would arrange the thing with him.”

The plaintiff exhibited the bond with his bill, and admitted it was “ in a mutilated state.”

From the foregoing allegations it appears that John Piercy, ■Sr., conveyed the property by deed to Andrew J. Piercy and John Piercy, Jr. There is no allegation, and no proof, that Andrew J. Piercy conveyed his interest in the property to Beckett. It appears from the face of the bill, that the legal title is in Andrew J. Piercy. The court should have sustained the demurrer, and required the bill to have been amended by-making the said Andrew a party.

The obligee having delivered the bond to John Piercy, Jr., to be surrendered to the obligor, and the surrender thereof having been made as alleged by the plaintiff, with the understanding on the part of the obligee that the bond was to be-delivered to the obligor, and that John Piercy, Jr., was then to become payor of the debt, there being no allegation or proof of fraud, the court must hold that the bond was cancelled and, the trust discharged. 2 Parsons Notes and Bills, 235-6.

The plaintiff admits by the allegations referred to, that the-bond had been delivered up to Beckett, and yet he exhibits the bond with his bill,, in a mutilated form, without giving any explanation how he came in possession of it, or how it became mutilated. It lies upon the party seeking to enforce a bill or note to account for any alteration that appears on the face of the instrument. Tindal, C. J.; Clifford vs. Parkery 2 Man., 1 G., 909, cited in 2 Parsons Notes and Bills, p. 578, note. In the case of Johnson vs. Bank U. S., 2 B. Monroe, p. 311, Robertson, J., said: “ Ever since Pigofs case (Coke), it has been the settled doctrine of the common law, that any alteration in a deed, whether material or immaterial, if made by one party to it without the concurrence or authority of the other party, will avoid the deed, and sustain a plea of non est factum. 1st, Because the alteration must effect the question of identity; and 2d, Because such an unauthorized act of a party having the custody of a deed should be construed most strongly against himself, and if legalized, might facilitate injuries and irremediable frauds.” The authorities are numerous that, if the bond is altered by the obligee in a material point, it thereby becomes void. 2 Rob. Prae., 27, new ed., and cases cited. The tearing of the seal is a material alteration, and renders the deed void. 5 Rob. Prac., 239-40.

In the case before us, the signature and seal have been torn off. The plaintiff has not accounted for the alteration; therefore, upon the authority, the court should have held the bond void and the deed of trust extinguished.

The court also erred in adjudicating the merits of the cause without having appointed a guardian ad litem for the infant defendants. If there is any claim against the estate of John Piercy, Jr., in favor of the plaintiff, it can only be upon the ■contract between the said John Piercy, Jr., and his father. The defendants rely upon the statute of limitations against that claim, but how far that will avail them, this court cannot discover from the record. I am therefore of opinion that the decrees should be reversed, with costs, and the cause remanded to be proceeded in, according to the principles, herein indicated.

The other judges concurred.

Decree reversed.