Reck v. Clapp

Mr. Justice Green

delivered the opinion of the court

Tim second point of the plaintiffs was in the following words :

“If the jury find from inspection and other evidence that the date of the assignment or transfer by Guthrie to Maguire of his title deed for tlie land in controversy, and also the date of the acknowledgment thereof, were erased, mutilated and changed on the paper itself from December 20th 1875 to December 20th 1874. it would render such assignment or transfer fraudulent and void, and being in tlie direct lino of bis title, defendant was bound to take notice of it, and if be failed to do so he is not an innocent purchaser without notice, and the verdict of the jury should he for the plaintiffs for the land in controversy.”

’ The hypothetical facts of this point were an absolute obliteration of the actual date of an instrument conveying title to land, and the substitution, in place thereof, of an anterior and false date. Beyond all question, such an alteration of such an instrument would be a forgery as against any person affected by the change, and who was not a party or privy to it. The plaintiffs claim to be, and apparently are, such persons. They acquired title by purchase at sheriff’s sale under a judgment entered August 6th 1875. "Whatever title Guthrie, the defendant in that judgment, had on that day, in the land in controversy, passed to the plaintiffs by their-purchase. This gives them a sufficient interest to question the condition of Guthrie’s title. Now the legal effect of the alleged alteration was to divest Guthrie’s title as of August 6th 1875, by subjecting it to the operation of a transfer dated December 20th 1874. lie held title by a deed in fee simple dated September 6th 1872, which on its face contained no conditions or qualifications. But the defendant Clapp claims to have been, and apparently is, an innocent purchaser for value of Guthrie’s title as it stood on the record. Tested by tlie record alone, bis claim would be good because that afforded no evidence of the forgery. In this condition of things the plaintiffs’ second point was put in order to charge the defendant with the effect of the forgery, for the reason that the forged instrument was itself a link in his chain of title. He does, and must claim title directly through that paper. The question is reduced to one of the plainest and simplest character, to wit, does a forged deed pass the title which it assumes to convey, as against one who has no participation in, or knowledge of the forgery % Of course it can accomplish no such result.

The second point of the plaintiffs was answered by the court below by their saying, in effect, that tlie defendant would not be affected by tlie forgery, because lie could assert the rights of an innocent purchaser without notice if he used reasonable diligence to obtain access to the original papers, but without success, and the title, as recorded, was fair and free from blemish. The consequences of such a doctrine would be of a most seiious character if it received the sanction of the courts. For then it would only be necessary for the forger of a deed or mortgage, after having it placed on record, to lose or destroy the original instrument and convey his title to an innocent third person for value, pretending to him that the original paper was mislaid and would be subsequently delivered. Of course, a purchaser who examines the records is protected by them as far as they can protect him, but he necessarily takes the risk of having the actual state of the title correspond with that which ■appears of record. The language of this court in the ease of Arrison v. Harmstead, 2 Barr 191, fully illustrates this subject: “ A deed, good in its creation, may become void by matter ex post facto, as by interlineation, erasure, or by alteration in a material part. But a deed may be good in part and void in part. It may be good against one person and void against another.” . . . “ It is said that Mrs. Lewis is a bona fide purchaser without notice, and that the action may be sustained on that ground. But conceding that she is, her situation is no better than the fraudulent grantor’s. Although the title of the grantor was, in its inception, good, it became entirely void by matter ex post facto. At the time of the assigm&eut, the title being avoided, tile assignor had nothing to convey; of course nothing passed to the assignee. It may be, and perhaps is, a a hard case. Fraud may be committed on an innocent pui chaser, who may find it difficult to guard against imposition. This is conceded; but it is far better to encounter this risk, than to give the least countenance to any alteration whatever of a solemn instrument of writing, which would certainly be the result, if the guilty party could escape the consequences of his fraud by a transfer to a person who might assume the garb of an innocent purchaser for a valuable consideration. We cannot lay too many restraints upon trick, artifice and fraud.” In Van Amringe v. Morton, 4 Wh. 382, it was held that if a deed which has been executed and acknowledged by the grantor with a blank for the grantee’s name, be surreptitiously and fraudulently taken from the grantor’s house, and the blank filled up, no title passes thereby; and a bona fide purchaser for a valuable consideration from the person holding the deed stands in no better situation than such fraudulent holder. In the case of Wallace v. Harmstad, 8 Wright on p. 494, Woodward, J., speaking of the cases of Arrison v. Harmstead, 2 Barr 191, and Wallaces. Harmstad, 3 Harr. 462, said: “The stern ruling in those cases was applied without hesitation to a bona fide purchaser of the ground rent without notice of the fraud, so that, as far as concerns Arrison and all persons claiming under him, the part of the deed which was intended to enure to his benefit, may indeed be said to be dead. It was not merely a voidable instrument, it was void. It was called a forgery and treated as sucb, and neither law nor equity would tolerate it even in the hands of an innocent purchaser.”

We are clearly of opinion that the learned court below was in error in the answer to the defendant’s second point, and for that reason the judgment must be reversed. The views we have expressed require a modification of the answers given to the defendant’s third and seventh points, and the case is also reversed on the seventh and ninth assignments, in which those answers are complained of. As to the other matters presented by the various assignments, we forbear discussing or deciding them, for the reason that the case goes back for another trial and these questions maybe affected by testimony to be then delivered.

Judgment reversed, and venire facias de novo awarded.