Hord v. Taubman

• Decision Date: 31 October 1883
• Parties: HORD et al., Appellants, v. TAUBMAN.
• Court: Missouri Supreme Court

79 Mo. 101

HORD et al., Appellants,

v.TAUBMAN.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Lafayette Circuit Court.--HON. WM. T. WOOD, Judge.

AFFIRMED.

Plaintiffs were the beneficiaries and the trustee in a deed of trust purporting to convey an undivided one-half interest in a parcel of land, and in this action sought to enjoin the sale thereof under a prior deed of trust securing an indebtedness which they alleged to have been paid. The property described in the deed of trust under which plaintiffs claimed, was owned by a married woman under a legal title, and she and her husband executed the deed of trust with the name of the trustee omitted therefrom.

One of the plaintiffs testified that when he gave the deed to the recorder for record, the latter remarked that there was no trustee named in it, and the plaintiff said he supposed the notary public had omitted it, that John C. Handley was the trustee agreed upon between plaintiffs and the grantor, the husband; and at his request the recorder inserted Handley's name in the deed as trustee; he further testified that the grantor, the wife, understood that Handley was agreed upon as the trustee, and made no objection.

Wallace & Chiles for appellants.

J. D. Shewalter and Alex. Graves for respondents.

I.

SHERWOOD, J.

The doctrine of this court is well settled as to the effect of the alteration of instruments when made by those who are interested in them beneficially, and who have them in custody, and in the absence of those who execute them. In our latest adjudication on the subject, ( First National Bank v. Fricke, 75 Mo. 178,) where the authorities inclusive of the case of Haskell v. Champion, 30 Mo. 136, are cited and discussed, the doctrine of the case last named is followed, that it is contrary to the policy of the law to permit the owner and custodian of an instrument to change it, and then when charged with the fact, to claim that the alteration is immaterial. See also Burnett v. McCluey, 78 Mo. 676. The absolute inviolability of the instrument is superior to every other consideration, and if those who are to be benefited by the alteration, alter it or cause it to be done, the law tersely and sternly announces the consequence of such tampering. In this case, but for the additional words, there would have been no grantee, and consequently no title either legal or equitable passed by reason of the apparently perfect, though really imperfect conveyance. This will be made plainly to appear in the next paragraph.

II.

The deed made by Reed and wife to Annie E. Russell only conveyed a title in fee to the grantee, and nothing more; hence she possessed no separate estate. Had she been the possessor of a separate estate, a very different phase of the case would present itself, and call for a different conclusion from that we shall be constrained to reach. If Mrs. Russell, by reason of the terms of the deed from Reed and wife, had been the recipient of a separate estate, then, doubtless, she being in consequence thereof, and in respect of the land conveyed, pro hac vice a femme sole, could, so far as executing an equitable mortgage is concerned, bind her separate estate by the execution of an instrument of conveyance in blank, and thus bring this case within the operation of the rule announced in McQuie v. Peay, 58 Mo. 56. In a later case the obligatory force of a promissory note when executed in blank by a femme covert, when possessed of a separate estate, Morrison v. Thistle, 67 Mo. 596, was announced. Here, on the contrary, as Mrs. Russell was merely invested...