Cheek v. Nall Et Ux

• Decision Date: 28 March 1893
• Citation: 112 N.C. 370,17 S.E. 80
• Court: North Carolina Supreme Court
• Parties: CHEEK. v. NALL et ux.

17 S.E. 80

112 N.C. 370

CHEEK.

v.NALL et ux.

Supreme Court of North Carolina.

March 28, 1893.

Alteration of Instruments—Mortgages.

1. A bond executed by a woman and her husband, and intrusted to the latter for delivery to the obligee, is void as to the wife if the husband, before delivery, though without the obligee's knowledge, alters it by raising the amount.

2. Where a woman executes a bond and mortgage to secure the same, and intrusts them to her husband for delivery, the fact that the husband, before delivery, alters the bond by raising the amount, and the mortgage by raising the consideration recited therein, though it avoids the bond, does not avoid the mortgage, where the description of the debt in the mortgage, as "a certain bond of even date herewith, payable November 15, 1889, " is not altered; since the alteration of the consideration is immaterial, and the mortgage may be enforced for the amount of the debt, notwithstanding the invalidity of the bond.

Appeal from superior court, Chatham county; Henry R. Bryan, Judge.

Action by C. C. Cheek against Joseph J. Nail and Sophronia C. Nail, his wife, to foreclose a mortgage. From a judgment for plaintiff, defendants appeal. Affirmed.

The mortgage sought to be foreclosed wasexecuted by defendants to secure their bond to plaintiff for $200, of even date therewith, and payable on or before November 15, 1889. The mortgage recited $200 as the consideration, and described the debt secured as "a certain bond, even date with these presents herewith, payable on or before the 15th day of November, 1889." The instruments, after their execution, were left in the hands of defendant Joseph J. Nail, and, before he delivered them to plaintiff, he altered the bond, without the knowledge of his wife or of plaintiff, by raising the amount thereof to $400, and also raised to that amount the consideration recited in the mortgage, but the description of the debt in the mortgage was not changed.

Charles E. McLean, for appellants.

T. B. Womack, for appellee.

SHEPHERD, C. J. As to the male defendant, the delivery of the bond and mortgage is admitted, and it is very clear that his fraudulent alteration of the same cannot have the effect of relieving him from the liability imposed by their original terms. As to the feme defendant, It appears from the admissions in the pleadings and the facts found by his honor that she signed both of the above-mentioned Instruments, and was privily examined as to the execution of the mortgage. These, with her consent, were taken possession of by the male defendant, her husband, and some days thereafter delivered to the plaintiff. From this it appears that the delivery of the bond and mortgage, In their original form, was authorized by the feme defendant; but, as the alteration was made before actual delivery, she claims that neither of the said instruments is her act and deed, and that both are absolutely void as to her. The bond was altered so as to read $400 instead of $200, and, this being a material alteration of the terms of the instrument without the consent of the feme defendant, It may be avoided by her. The mortgage, however, is valid, as the alteration was not a material one, and it is well settled that "an alteration * * * which does not change its legal effect does not in law amount to an alteration, and, of course, does not...