Foote v. Hambrick

• Decision Date: 28 June 1892
• Citation: 70 Miss. 157,11 So. 567
• Court: Mississippi Supreme Court
• Parties: H. W. FOOTE v. M. C. HAMBRICK

11 So. 567

70 Miss. 157

H. W. FOOTE v. M. C. HAMBRICK

Supreme Court of Mississippi

June 28, 1892

FROM the chancery court of Noxubee county, HON. T. B. GRAHAM Chancellor.

Bill in chancery to foreclose a trust-deed. The facts are stated in the opinion. It may be added that the bill, while alleging a mistake in the description of the land intended to be embraced in the trust-deed, contains no prayer for a reformation thereof, or for general relief.

Decree reversed and demurrer overruled.

Rives &amp Rives, for appellant.

The tendency of courts now is to uphold and enforce contracts of all kinds according to the intention of the parties. Liberality has taken the place of strictness. Collins v Collins, 51 Miss. 311.

Even if the alteration were unauthorized or contrary to the original agreement, it would not render the whole mortgage void, since it was not fraudulently made, but in good faith. Collins v Collins, supra; Vanhorn v. Bell, 79 Am. Dec., 506. The case is governed by McRaven v. Crisler, 53 Miss. 542.

This mortgage, having been executed since the code of 1880 removed all disabilities of coverture, it is subject to be corrected so as to evidence the true intent of Mrs. Hambrick. Equity can correct the instrument, and the parties can do that which equity will compel to be done.

The correction must be construed as her act, in view of the allegations of the bill. Ross v. Baldwin, 65 Miss. 575.

H. W. Foote, appellant, pro se, on the same side.

A ratification may be by parol, and may be implied. It is a question of fact. 7 Yer. (Tenn.), 410; 58 Ill. 19; 19 Johns., 391; 10 Am. Dec., 239; 35 Ark. 147; 123 Mass. 297; 40 Mich. 348; 9 Smed. & M., 375.

An alteration, honestly made, to correct a mistake will not avoid an instrument. McRaven v. Crisler, 53 Miss. 542. See 14 Am. Rep., 766, and cases cited. At most, it could only be void as to the part altered. 51 Miss. 311.

Parties who have consented to an alteration, or ratified it, cannot withdraw from such consent or ratification. 33 Ark. 225.

A. C. Fant, for appellee.

The alteration of the mortgage without the consent of Mrs. Hambrick annulled it. Bishop, Contr., § 746; 5 Lawson, R., R. & P., § 2474; 1 Jones, Mortgages, § 94; 7 Am. & Eng. Enc. L., 502, 509; Everman v. Robb, 52 Miss. 653. McRaven v. Crisler is contrary to these authorities, and should not be followed.

A. C. Bogle, on the same side.

The bill does not seek reformation of the trust-deed, nor does it pray for general relief. It must therefore be considered as a mere bill to enforce the trust-deed as altered.

It is well settled that the holder of any instrument, who, without consent of the maker, materially alters it to his advantage, cannot enforce it. It is no answer to this to say that courts of equity can reform the instrument. Courts are organized to do such things, and the policy of the law is that only the courts shall do them.

The bill does not show that the wife promised to include the homestead, or supposed it was included at the time she executed the trust-deed. The general allegation that all parties intended to include the homestead, is destroyed by the specific averment that the whole transaction was with the husband, and all the wife had to do with it was to execute the papers.

The good faith of the party making the alteration does not alter the case. It is a question of public policy, not intent.

It cannot be said that appellee ever acquiesced in the alteration, since the bill avers that she never knew of it. McRaven v. Crisler is not decisive of this case. In that case the alteration was of a note, and in a matter not material to the note. See Bridges v. Winters, 42 Miss. 135. The case is entirely different where deeds to land are altered, especially when the homestead is inserted. As to that, a conveyance can have no effect without the signature and acknowledgment of the wife.

T. W. Brame, on the same side.

That a material alteration of a note, without the maker's consent, discharges him, was decided in Oakey v. Wilcox, 3 How., 330. This case has never been overruled. Bridges v. Winters and McRaven v. Crisler are not in point. They were cases of simple notes, and the alterations were not in essential matters. So of the case of Collins v. Collins. The doctrine of these cases cannot extend to conveyances of land, where the alteration is material.

The wife is not bound by the unauthorized act of the husband in making the alteration. 1 Jones on Mort., 94; 5 Lans., 365.

This is not a bill for reformation, but a suit on the altered instrument. In any view of the case, the mortgage is void as to the homestead. That can be transmitted only in the manner provided by the statute.

Argued orally by J. E. Rives, for appellant, and A. C. Bogle and T. W. Brame, for appellee.

OPINION

WOODS, J.

The material facts shown by the appellant's original bill and admitted by the demurrer of the appellee, are these, viz.: The appellee and her husband, J. T. L. Hambrick, being indebted to appellant in the sum of $ 6,973.95, agreed to give him their note for that amount, and to secure the payment thereof by a trust-deed in his favor on certain lands in Noxubee county, including the north-east one-fourth and thirty acres off the east side of the north-west one-fourth of section 17, township 16, range 19; and they accordingly made and delivered to appellant their promissory note for said sum, due December 1, 1891, executing, at the same time, to Thomas Foote, as trustee, their deed of trust, to secure the payment of the said note, intending to include in the trust-deed the land, and only the land, fully and particularly set out and described in the bill, in which is included the said north-east one-fourth and the thirty acres in the north-west one-fourth of said section 17; but that, by mistake in drafting the trust-deed, the south-east one-fourth, and thirty acres off the east side of the south-west one-fourth, of said section 17 were inserted, instead of the north-east one-fourth, and thirty acres off the east side of the north-west one-fourth of said section as was intended. Neither the appellee nor her husband owned any land in the south-east one-fourth or the south-west one-fourth of said section 17; but appellee did, at that time, own the north-east one-fourth, and thirty acres off the east side of the north-west one-fourth, of said section, and these lands in the north-east one-fourth and the northwest one-fourth were intended by all the parties at the time to be included in said trust-deed, together with the other lands described in the bill, and correctly embraced and set out in the deed, and appellee understood that all of the lands described in the bill of complaint were included in the trust-deed. Some time after the execution of the trust-deed, complainant and the husband of appellee, one of the makers of the note and trust-deed, had a conference touching the matter, and he agreed to the correction of the trust-deed, and the said husband of appellee took the deed, and, in the presence of complainant, erased the letter "S," in "S. E. one-fourth" of section 17, and wrote the letter "N" in place of the erased letter "S," and did the same with the letter "S" in the "S. W. one-fourth" of section 17, so that said deed then, as it was first intended it should, embraced all the lands described in the bill filed herein, and said trust-deed was itself filed as an exhibit to the bill. The said northeast one-fourth, and the thirty acres off the east side of the north-west one-fourth, of section 17 embraced the homestead of said appellee and her said husband, and the appellee was either informed by her husband of the mistake which had been made, and of its correction by him, as set out and shown in the bill, and acquiesced therein, or she never had any information that any mistake had been made, but supposed all the time that the trust-deed included and described the said north-east one-fourth, and the thirty acres in the north-west one-fourth, of said section 17, the land which she really owned, and which embraced her homestead; and appellee, as late as December 3, 1891, in a letter written to appellant, admitted that the deed embraced her homestead, and that appellant could lawfully proceed to have the same sold. The whole of said promissory note, principal and interest, remains due and unpaid, and appellee refuses to pay the same, or any part thereof, and Thomas Foote, the trustee, and J. T. L. Hambrick, appellee's husband, are now dead.

The prayer of the bill is for a decree of the court for a sale of all, or of a sufficiency of the lands embraced in the trust-deed, as corrected, for the satisfaction of the appellant's debt.

To this bill appellee interposed her demurrer, assigning, among other causes, as the second ground, that the alteration of the trust-deed, as averred and set out in the bill, rendered the same void, and destroyed all rights which appellant had thereunder. The demurrer was by the court below sustained, and the bill dismissed, the appellant declining to amend; and from this action an appeal is taken.

Before proceeding to consider the proposition thus presented, it is necessary for us to dispose of two contentions, relied upon by counsel for appellant as conclusive of the controversy, and as obviating any requirement on our part to determine the legal question raised by the second ground of demurrer.

1. It is said for appellant that it sufficiently appears from the statements of the bill that J. T. L. Hambrick, the husband of appellee, was the agent of his wife in this entire transaction, and was authorized to make such alteration and correction of the trust-deed. This contention rests upon an erroneous view of the meaning and effect of the averment...