Bowden v. Bowden, 366
Decision Date | 28 April 1965 |
Docket Number | No. 366,366 |
Citation | 264 N.C. 296,141 S.E.2d 621 |
Court | North Carolina Supreme Court |
Parties | , 30 A.L.R.3d 561 William H. BOWDEN, Petitioner, v. William C. BOWDEN et al., Additional Defendants. |
Sasser & Duke; Goldsboro, Whitley & Nowell, Mount Olive, for plaintiff, appellant.
John S. Peacock and James N. Smith, Goldsboro, for defendant appellees.
Plaintiff's assignments of error are based on exceptions to the charge. The crucial question is whether the trial judge erred in instructing the jury peremptorily to answer the issues in favor of the original defendants if they found the facts 'to be as all of the evidence tends to show,' without instructing them that if they failed to so find they should answer the issues in favor of plaintiff and the additional defendants.
All of the evidence pertinent and material to the issues raised by the pleadings, except documentary evidence, was stipulated by the parties. The admissibility, content and authenticity of the documentary evidence (the will of Daisy Bowden, the deed of Martin and wife and the two recordings thereof) are not in controversy; they are alleged on the one hand and in effect admitted on the other; their legal effect and the inferences to be drawn from their form and provisions are the matters in controversy.
The original deed, offered in evidence by the original defendants, is unquestionably the identical deed filed for record on 7 November 1917. The entry of the Register of Deeds, of registration in book 128, page 391, on 7 November 1917, appears on the back of the deed; and the genuineness of the entry is not questioned. The interlineations presently appearing on the original deed were made prior to the filing for registration on 7 November 1917. The 1917 recording shows 'Henry Bowden and wife' in the naming clause--therefore, the interlineation 'and wife' had been added before that recording. The 1917 recording shows 'Henry Bowden his wife' in the consideration recital and 'Henry Bowden' in the granting clause; the original deed shows 'Henry Bowden' in the consideration recital, and 'Henry Bowden his wife' in the granting clause. The original deed does not show that any erasure was made following the name 'Henry Bowden' in the consideration recital. It is clear therefore that the interlineation 'wife' was not shifted from the consideration recital to the granting clause after the 1917 recording. It is patent that the interlineation 'wife' was in the granting clause at the time of filing for recordation on 7 November 1917, and by mistake in recording (the recording was made in longhand on a printed form sheet) the copier placed the words 'his wife' on the blank line in the consideration recital, when they should have been put in the granting clause.
The original deed (made on a printed form) was prepared on a typewriter as a conveyance from B. E. Martin and wife, Maggie Martin, to Henry Bowden. The words 'and wife' in the naming clause, and the word 'wife' in the granting clause, were interlined in pen after the deed was typewritten and before it was recorded. The deed was executed and acknowledged on 31 October 1917; it was filed for registration a week later, on 7 November 1917. The alteration of the deed by the interlineation of 'and wife' and 'wife' is apparent upon the face of the instrument. 'An alteration is deemed to be apparent on the face of the instrument in cases of interlineation, erasure, difference of handwriting, changes of figures or words, or other irregularities on the face of the paper.' 4 Am.Jur.2d, Alteration of Instruments, s. 80, p. 74. '* * * transfer of title cannot be effected by the device of adding or substituting the name of another person for that of the grantee who was designated in the deed.' 16 Am.Jur., Deeds, s. 357, p. 644; Perry v. Hackney, 142 N.C. 368, 55 S.E. 289. But the alteration of a deed by adding the name of another grantee does not ordinarily divest the title and estate conveyed to the original grantee by the deed in its original form. 4 Am.Jur.2d, Alteration of Instruments, s. 47, p. 45; 16 Am.Jur., Deeds, s. 354, p. 643. See also McLindon v. Winfree, 14 N.C. 262.
An erasure or interlineation is not in law an alteration if made before the deed is executed. Wicker v. Jones, 159 N.C. 102, 74 S.E. 801, 40 L.R.A.,N.S., 69. A deed altered after its execution and delivery is good if the alteration is made with the knowledge and consent of the grantor. Krechel v. Mercer, 262 N.C. 243, 136 S.E.2d 608; Campbell v. McArthur, 9 N.C. 33. Before registration a deed may be changed in any way that may be agreed upon between the parties thereto, so far as it affects them. Respass v. Jones, 102 N.C. 5, 8 S.E. 770. See 67 A.L.R. 367.
When it is apparent that there are interlineations in a deed which materially alter the effect thereof as originally drawn, the question arises whether the burden is on the party claiming under the deed, as altered, to prove that the interlineations were made at the time of or before the execution of the deed, or on the party attacking the altered deed to prove that they were made after execution. On this question the authorities are in irreconcilable conflict. 4 Am.Jur.2d, Alteration of Instruments, ss. 80-83, pp. 74-78. But the holding in this jurisdiction is that the burden is upon the party attacking the deed to prove by the greater weight of the evidence that the interlineations or other alterations were made after execution of the deed. Wicker v. Jones, supra; Collins v. Vandiford, 196 N.C. 237, 145 S.E. 235. In Wicker it is said:
'* * * it would seem to be wise and just to adopt a rule which will tend to preserve and sustain titles acquired by such deeds (showing interlineations and erasures), although under it an injustice may occasionally result, and in our opinion it is safer, and in accord with the better public policy, to hold, as we do, that the party claiming under a deed is entitled to introduce it in evidence upon proof of its execution, and that the burden is upon the party who assails it, on account of erasures or interlineations appearing on its face, to satisfy the jury by the greater weight of the evidence that the erasures or interlineations were made after the execution of the deed.'
Where it has been established that alterations were made after execution and...
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