Gleason v. Hamilton

• Decision Date: 06 June 1893
• Citation: 138 N.Y. 353,34 N.E. 283
• Parties: GLEASON v. HAMILTON.
• Court: New York Court of Appeals Court of Appeals

138 N.Y. 353

34 N.E. 283

GLEASON

v.HAMILTON.

Court of Appeals of New York.

June 6, 1893.

Appeal from supreme court, general term, fourth department.

Action by Lucius Gleason against Fannie M. Hamilton to foreclose a mortgage. From a judgment of the general term (19 N. Y. Supp. 103) affirming a judgment for plaintiff, and an order denying a motion for a new trial, defendant appeals. Affirmed.

No person producing any document which has been altered in a material part can claim under it the enforcement of a right created by it, unless the alteration was made before the completion of the document, and with the consent of the party to be charged under it, or his representative in interest. Davidson v. Cooper, 11 Mees. & W. 778, 13 Mees. & W. 343; Aldous v. Cornwell, L. R. 3 Q. B. 573; Pigot's Case, 11 Coke, 27; Marcy v. Dunlap, 5 Lans. 370; Bowser v. Cole, 74 Tex. 222, 11 S. W. Rep. 1131; Hollingsworth v. Holbrook, 80 Iowa, 151, 45 N. W. Rep. 561;Reynolds v. Witte, 13 S. C. 5;Fishkill Bank v. National Bank, 80 N. Y. 162, 168;Rice v. Wilkins, 21 Me. 558;Phillips v. Rounds, 33 Me. 357.

That an alteration by a stranger, without the procurement or connivance of either party, will not avoid an instrument, however material the alteration, has been affirmed in numerous other cases. Piersol v. Grimes, 30 Ind. 129;Cochran v. Nebeker, 48 Ind. 459;City of Boston v. Benson, 12 Cush. 61;Adams v. Frye, 3 Metc. (Mass.) 104;Drum v. Drum, 133 Mass. 568;Boyd v. McConnel, 10 Humph. 68;Lee v. Alexander, 9 B. Mon. 25;Bridges v. Winters, 42 Miss 135;Croft v. White, 36 Miss. 455;Lubbering v. Kohlbrecher, 22 Mo. 596;Moore v. Ivers, 83 Mo. 29;Bank v. Roberts, 45 Wis. 373;Gorden v. Robertson, 48 Wis. 493, 4 N. W. Rep. 579Condict v. Flower, 106 Ill. 105;Pry v. Pry, 109 Ill. 466;Bellows v. Weeks, 41 Vt. 590;Williams v. Moseley, 2 Fla. 304;Major v. Hansen, 2 Biss. 195;Evans v. Williamson, 79 N. C. 86;U. S. v. Spalding, 2 Mason, 478;U. S. v. Linn, 1 How. 110.

Tracy, McLennan & Ayling, (William G. Tracy, of counsel,) for appellant.

Jenney, Brooks, Marshall & Ruger,(Louis Marshall, of counsel,) for respondent.

PECKHAM, J.

If, in order to sustain this judgment, it were necessary to maintain the finding that the mortgage was reacknowledged, and thus assented to by the defendant after the alteration was made, we should be unable to do it. We think the case is wholly without evidence to sustain such finding. There is nothing to sustain it but the alleged promise of the husband of defendant that he would have it reacknowledged, and the declaration of the notary, out of court, that he had taken a reacknowledgment of the mortgage. It may be assumed that Mr. Doheny supposed it had been reacknowledged, and that he is correct when he says the notary told him that it had been. The declaration of the notary, made out of court, did not bind the defendant in any way, and was not competent evidence against her for the purpose of showing the fact of reacknowledgment. When the alteration had been proved, and it appeared to be a material one, the burden rested upon the plaintiff of showing that the alteration had been made with the consent of the defendant, and that the mortgage had been thereafter reacknowledged. Tillou v. Insurance Co., 7 Barb. 564;Acker v. Ledyard, 8 Barb. 514. There was no proof whatever of such assent or reacknowledgment. Striking out such finding, and also the verdict of the jury upon the same proposition, there yet remains enough in the case to justify and demand our affirmance of the judgment. We ought not to reverse it, and send the case back for a new trial, when there is sufficient evidence, wholly uncontradicted and perfectly credible, to prove beyond any doubt that the plaintiff ought to recover. The plaintiff was wholly ignorant of the alteration attempted to be made in the mortgage, and so remained until after the commencement of this action. The action itself is brought to foreclose the mortgage for nonpayment of paper which, confessedly, it was originally given to secure. The attorney who wrote in the addition to the mortgage as it originally was executed had no power, as agent of the plaintiff, to make any alteration in the instrument by which its validity should be avoided. While the high character of the attorney who directed the addition might render it entirely plain that there was no intention of making any fraudulent alteration, and while the evidence seems to pretty clearly show there was not in fact the slightest wrongful intent in directing the alteration, and that it was done for the purpose of thereafter securing the assent of the defendant to the alteration, yet no such assent was secured; and this act of the attorney for the plaintiff cannot properly, as we think, operate as if it had been an alteration made in a material part of the mortgage by the plaintiff himself, or by his attorney or agent, with his knowledge or by his authority, expressed or implied. The act of the attorney did not, and ought not to, bind the plaintiff in this case.

Many cases have arisen since the decision of Pigot's Case, 11 Coke, 27, where it was held that a material alteration made by a stranger to a deed, and without the privity of the obligee, did nevertheless invalidate the instrument. As late as the years 1843 and 1844 this decision was treated with respect by the English courts. Davidson v. Cooper, 11 Mees. & W. 778, 798, in exchequer chamber, 13 Mees. & W....