Bacon v. Hooker

• Decision Date: 02 January 1901
• Citation: 177 Mass. 335,58 N.E. 1078
• Parties: BACON v. HOOKER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

177 Mass. 335

58 N.E. 1078

BACON v. HOOKER et al.

Supreme Judicial Court of Massachusetts, Middlesex.

January 2, 1901

COUNSEL

P. B. Kiernan, for plaintiff.

Dewing & Cutler, for defendants.

OPINION

HOLMES C.J.

This is an action of tort with counts for a trespass upon the plaintiff's close, for a trespass to the plaintiff's person, and for the conversion of a piano. The defendants justified under a mortgage of chattels, including the piano conditioned among other things, against moving the goods from the place where they were at the time, and proved a breach of the conditions. The plaintiff offered evidence that the defendants had added the description of various articles to the granting clause of the mortgage without the knowledge of herself or her husband. The jury were instructed that, if the defendants had made a material alteration in the mortgage without the knowledge of the other parties, the mortgage was void, and the defendants' servant had no right to take the piano; and that if, in doing so, he had used force to the person of the plaintiff, the defendants were liable. The jury found for the plaintiff, and the defendants come here on exceptions, which we agree with the judge below were properly saved. Other exceptions were taken, which are not argued, and which we therefore assume to be waived.

We must take it that the alteration was material, although it is fair to observe that the mortgage covered all the personal property in the plaintiff's house at the time of its execution, and that, so far as appears, the defendants may have written in the words because they rightly or wrongly supposed that the articles enumerated were covered by the general language already there. The alteration was a cancellation of the deed, having the same effect that tearing off the seals would have had. This rule comes down to us from a time when the contract contained in a sealed instrument was bound so indissolubly to the substance of the document that the soul perished with the body when the latter was destroyed or changed in its identity for any cause. As applied to deeds, the rule has an unimpeachable pedigree, and is elementary law.

However in modern times, at least, it is settled that, so far as a deed passes and estate, and is not merely executory, its executed effect is not disturbed by a subsequent alteration and the question has been raised as to how this qualification will operate in the case of a mortgage. Kendall v. Kendall, 12 Allen, 92. In that case the change consisted in the addition of the name of the mortgagor's wife to a mortgage of land, and the court remarked that it did not appear by whom the alteration was made, and that nothing was done which, if genuine, would have affected the interest of the mortgagor. The wife was dead. It was held that evidence of the change properly was rejected in an action to foreclose brought against the husband. On the other hand, it was decided in Harrison v. Owen, 1 Atk. 520, West, Ch. 527, that, if a mortgagee cancels a mortgage by tearing off the seals, it is as much a release as canceling a bond, although it does not revest the estate in the mortgagor. The same principle clearly would govern in case of alteration of both bond and mortgage by the mortgagee. Waring v. Smyth, 2 Barb. Ch. 119. And it has been applied unanimously, so far as we know, in this country, where the alteration was in the mortgage alone, in the case of a mortgage of land; at least so far as rights under the mortgage were concerned. McIntyre v. Velte, 153 Pa. St. 350, ...