Scott v. Perry

• Decision Date: 23 November 1925
• Docket Number: 25129
• Court: Mississippi Supreme Court
• Parties: SCOTT et al. v. PERRY et al. [*]

106 So. 12

140 Miss. 452

SCOTT et al. v. PERRY et al. ^[*]

No. 25129

Supreme Court of Mississippi

November 23, 1925

Division A

1. ALTERATION OF INSTRUMENTS. Interlineations not alterations unless made after delivery.

Erasures or interlineations on face of instrument are not alterations in a legal sense, unless made after delivery of instrument.

2. ALTERATION OF INSTRUMENTS. Whether change after delivery question for trier of fact.

Whether erasures or interlineations were made after delivery of instrument is a question for the trier of fact.

3. ALTERATION OF INSTRUMENTS. Burden of showing changes after delivery on party claiming it.

Except as to negotiable paper, one assailing an instrument for erasures or interlineations has the burden of showing that they were made after its execution.

4. APPEAL AND ERROR. Chancellor's finding of insufficient evidence to show interlineations were after delivery of deed not manifestly wrong.

Chancellor's holding that evidence failed to show that interlineations in deed were made after its execution and delivery held not manifestly wrong so as to authorize its disturbance.

HON. E N. THOMAS, Chancellor.

APPEAL from chancery court of Sunflower county, HON. E. N. THOMAS Chancellor.

Suit by Priscilla Scott and others against T. E. Perry and others. Bill dismissed, and complainants appeal. Affirmed.

Affirmed.

Everett & Forman, for appellant.

Our contention is that the deed made to Walter Scott, the original of which is sent up by an order of the chancellor for the inspection of this court, vested the title in him; and immediately upon his death the title descended to his wife and three, then, living children; and the alteration of the deed thereafter did and could not affect the title which had vested in the heirs of Walter Scott immediately upon his death. If this contention be true, then it is useless to discuss any other question which arises in these transactions after the alteration of the deed, and in this brief we shall confine ourselves to the discussion of the alteration of this deed and its effect.

The question presented for determination is: Was this deed executed and delivered to Walter Scott and after his death altered by some other person? The proof clearly shows that this was done. Then, if that be true, under our statutes of descent and distribution, the title to this land passed to the complainants upon the death of their husband and father, Walter Scott. 8 R. C. L., par. 84, page 1028. See the many authorities given in support of the principle following the text, and especially: Bacon v. Hooker, 177 Mass. 335.

The alteration of the name of the grantee in a deed is a material alteration. Hollis v. Harris, 96 Ala. 288; Abbott v. Abbott, 189 Ill. 488; Simpkins v. Windsor, 21 Or. 382.

Mr. T. E. Perry, one of the defendants, who, at the time he testified, was claiming to be the owner of the land by sale thereof under a trust deed given by Priscilla Scott, undertakes to say that the deed, at the time he first saw it in 1915 or 1916, was unacknowledged and that he procured the acknowledgment thereto, thereby claiming that the deed was ineffectual prior to its acknowledgment to pass the title to Walter Scott. This we deny, and unless the defendants can avail themselves of that defense, this case must be reversed. The rule in this state is that an acknowledgment to an instrument is not necessary to pass the title between the parties, but is only necessary to admit the instrument of record. Section 2294, Hemingway's Code. There are no subsequent purchasers concerned in this transaction, unless Mr. Perry terms himself a subsequent purchaser, and he knew of the alteration in the deed at the time he claims to have had it acknowledged, but the title passed whether the instrument was acknowledged or not. Finch v. Tanner, 2 Miss. 213.

Therefore, the title of Banks and Kyle passed to Walter Scott upon the delivery of the deed to him, whether it was properly acknowledged or not, and upon his death vested in his heirs, and the subsequent erasure and change of the beneficiary could not affect the title then vested in the heirs of Walter Scott.

But, we say that Perry's testimony is incompetent to impeach the acknowledgment which is written on this deed, and falls far short of furnishing the necessary evidence to show that the acknowledgment was not made on the day recited therein. In the first place, his testimony is flatly and positively contradicted by Priscilla Scott. In the second place, he does not testify that the acknowledgment was dated back to 1913, the date of the deed, but says that it was made sometime in 1915 or 1916, being very indefinite as to when the acknowledgment was made. Mallory v. Walton, 119 Miss. 396, 81 So. 113.

This case should be reversed and a decree entered for the appellants.

Clark, Roberts & Hallam, for appellees.

The only question presented for the determination of this court is: Was this deed executed and delivered to Walter Scott and after his death, altered by some other person? There can be no question but that the name "Priscilla Scott" was written into the deed after the name Walter Scott had originally been written in with the typewriter. There was no attempt on the face of the deed to disguise the fact that a change in grantees had been made.

Counsel for appellants blandly state in their brief that prior to the making of the loans by Shelton Allen: "There was stricken out of the original deed the name of Walter Scott wherever that name appeared, and there was written with a pen in this original deed the name of Priscilla Scott as the original purchaser;" and that after the deed was changed, it was filed for record. The only evidence with reference to the alteration of the deed appears in the testimony of Priscilla Scott, and this testimony places the alteration at a date in the year following the year in which the instrument was recorded in the chancery clerk's office at Indianola, testifying that the alteration took place in M. B. Hilton's office in Cleveland, Mississippi, in the presence of T. E. Perry, M. B. Hilton and Priscilla Scott, M. B. Hilton making the change in the deed.

We do not think that the presumption is unwarranted that at the time of the closing of the deal for the sale of this land, Priscilla Scott appeared and demanded that she be made the grantee therein, the deeds having already been prepared; and upon the said Walter Scott acceding to this, the name Priscilla Scott was written therein as original grantee, and she was required to sign the notes before the deed was delivered.

The presumption is that the change took place before execution, as this presumption has not been overcome by any evidence worthy of the name of evidence. If the change took place after the execution and delivery of the deed, when did it take place and who made the change? The bill of complaint alleges that Charles Banks made the change. The evidence of Priscilla Scott is that Hilton made the change, but that he made this change in 1917, a year after the deed was placed on record, and the recorded instrument shows that Priscilla Scott was the grantee therein. In fact, the question of fact as to the alteration of the deed has been decided by the lower court against the contention of the party charging the alteration; and as this is the decision of the court on the question of facts, it has the same binding force and effect as the verdict of the jury on the finding of facts, and the presumption stands. Lauderdale v. Cole, 71 So. 260, 2 C. J., pages 1275, 1276. There are numerous cases cited in Corpus Juris, and the same rule is held in federal courts. See Rankin v. Tygard, 196 F. 795. In the present case, there is no attempt to hide the alteration. It is bold and was intended, and this citation certainly applies to a case like the one at bar. Brand v. Johnrowe, 60 Mich. 210, 26 N.W. 883.

The presumption of the law is in favor of honesty and regularity. James v. Holdam, 142 Ky. 450, 124 S.W. 435. The bill of complaint charges fraud by Charles Banks, but no attempt is made to show that Charles Banks perpetrated a fraud by changing or altering the deed. As a matter of fact, positive proof is that Charles Banks did not change the deed and certainly could not be guilty of fraud for doing something which he did not do. The complainants failed to make out their case of fraud by a failure to prove all material allegations set forth in their bill of complaint with reference to fraud. In fact, the complainants in the court below, failed to show any fraud at all. 27 C. J., pages 40 44; Carter v. Eastman-Gardner Co., 95 Miss. 651; 8 R. C. L., par. 846, 1028; Wicker v. Jones, 159 N.C. 102, 74 S.E. 801, Ann. Cas. 1914 B 1083....