Alabama State Land Co. v. Thompson

• Decision Date: 13 November 1894
• Citation: 16 So. 440,104 Ala. 570
• Parties: ALABAMA STATE LAND CO. v. THOMPSON ET AL.
• Court: Alabama Supreme Court

16 So. 440

104 Ala. 570

ALABAMA STATE LAND CO. v. THOMPSON ET AL.

Supreme Court of Alabama

November 13, 1894

Appeal from city court of Gadsden; John H. Disque, Judge.

Action in ejectment by the Alabama State Land Company against J. G Thompson and others. From a judgment in favor of defendants plaintiff appeals. Reversed.

Smith &amp Lowe, for appellant.

Dortch & Martin, for appellees.

McCLELLAN J.

This is an action of ejectment. The demise relied upon is laid in John Swan and John A. Billups, trustees, etc. The defendants in respect of a part of the land sued for,-the N.W. 1/4 of the S.E. 1/4, and the S.W. 1/4 of the S.W. 1/4, of section 23, township 11, range 6, lying in Etowah county, Ala.,-claimed title through a deed from said Swan and Billups to Shaw, bearing date March 13, 1878; and, title in Swan and Billups having been shown by plaintiff, they offered this deed in evidence. Its introduction was objected to by the plaintiff on the ground "that it shows on its face that it has been mutilated, and upon the further ground that the clause, 'minerals reserved,' in the deed, has been erased by a pen." This objection was overruled; the deed was admitted; plaintiff was cast as to this land; and, reserving exceptions to this ruling, and also to the judgment, which was without jury, now appeals to this court.

The original deed from Swan and Billups to Shaw accompanies this record for our inspection. It is a printed form, prepared especially for conveyances by Swan and Billups, as trustees of the Alabama & Chattanooga Railroad lands. In the body of this deed are four erasures of printed matter. It was in the contemplation of the draughtsman of this form that the lands would be sold for cash in part, and on credit for the balance and that purchasers would execute their notes for deferred payments. Hence, in the form, there is a reference to notes executed by the purchaser. But Shaw paid cash in full, as is shown by the recitals, and that part of the deed referring to the notes is erased. Again, the form contemplates a sale to two or more persons, and in it there is a reference to the purchasers, "or either of them." Shaw was the sole purchaser in this instance; and therefore the words, "or either of them," are erased. The other two erasures are of the words "minerals reserved," where they occur at two places in the form. The context of the deed fully explains the first two erasures, but not so in respect of the last two. And we feel safe in concluding affirmatively that the former were made at the time the printed form was filled out, and before the execution of the deed. A presumption to like effect in respect of the latter would be indulged, if it were not for certain suspicious facts apparent on the face of the deed, and the conclusions to which those facts force as to the time of those erasures, and by whom made. These facts and conclusions are: (1) That the erasures appear not to have been made with the same pen in the two classes of instances, the mark being much heavier upon the words "minerals reserved," certainly in one place, than in either of the other instances. (2) That the erasures are not made in the same way. In erasing the reference to notes and the words "or either of them," a single line only is drawn through them; but in one instance two or three, and in the other certainly three, lines are drawn through the words "minerals reserved." (3) That the last erasure of the words "minerals reserved" appears to have been made after the blank deed had been filled out, inasmuch as the erasing lines pass over the top of the letter "S" in Shaw's name in the succeeding line. (4) That, in the absence of explanation, we must conclude that these erasures were made after the others, and therefore after execution, and while the paper was in the possession of the defendant or Shaw, through whom he claims. And, (5) the erasures being of benefit to the defendant, we must further conclude they were made by him or Shaw, and for a fraudulent purpose. Upon the face of the deed, therefore, suspicion attaches to the erasures of the words "minerals reserved," and, so far from this suspicion being removed by evidence aliunde going to show that these erasures were made at or before execution, the only evidence adduced bearing on the question was that in behalf of the plaintiff, to the effect that Shaw had made a written application for the sale of this land to him, and in it had embodied a reservation of the mineral interests, or, in other words, had proposed to buy and pay for all interests in the land, except the minerals. The evidence goes strongly to support plaintiff's theory that the minerals were intended to be, and were in fact, reserved in the sale and conveyance by Swan and Billups to Shaw; and upon it, in connection with the circumstances of suspicion apparent on the face of the deed in respect of the erasures of the words of reservation, we have no hesitation in reaching the conclusion that the lower court erred, at least in respect of rendering judgment for the defendant for the land including the minerals, or, rather, in not entering judgment for the plaintiff for the mineral rights and interest in the realty.

Whether the Shaw deed should have been received at all in evidence is another question. That it should not have been received as evidence of defendant's title to the minerals, in the absence of sufficient explanation on his part of the erasures of the words "minerals reserved," is, of course clear, because, prima facie, the alterations in question being, upon the considerations to which we have adverted, of a suspicious character, evidenced by the face of the instrument, the deed, until the suspicions were removed by satisfactory explanation, was to be taken, if admissible at all, as if it contained the erased words, which reserved title to the mineral deposits to the grantors. But whether the paper was evidence of Shaw's title to the land, exclusive of the minerals, is a more difficult question. It is familiar law that the effect of an unauthorized alteration of an instrument in a material part by one not a stranger to it, after its execution, ordinarily, is the destruction of the paper, in such sort that no rights under it can be asserted, and no rights between the parties can be proved by it. Sharp v. Orme, 61 Ala. 263; Hill v. Nelms, 86 Ala. 442, 5 So. 796; Barclift v. Treece, 77 Ala. 528; Anderson v. Bellenger, 87 Ala. 334, 6 So. 82; Montgomery v. Crossthwait, 90 Ala. 553, 8 So. 498; Saint v. Manufacturing Co., 95 Ala. 362, 10 So. 539; Hollis v. Harris, 96 Ala. 288, 11 So. 377. A paper so altered is no longer the paper which was signed by the party sought to be charged, and he cannot...