Tharp v. Jamison
| Decision Date | 13 February 1912 |
| Citation | 134 N.W. 583,154 Iowa 77 |
| Parties | MARY A. THARP, Appellee, v. C. E. JAMISON, Sheriff, JOHN HARNESS ET AL., Appellants |
| Court | Iowa Supreme Court |
Appeal from Van Buren District Court.--HON. D. M. ANDERSON, Judge.
SUIT in equity against a sheriff and an execution plaintiff to set aside a sheriff's sale, and to enjoin the issuance of the sheriff's deed thereunder to certain real estate. The plaintiff alleged that she was the owner of such real estate whereas it was levied upon by the sheriff as the property of her husband under an execution against him. There was a decree for the plaintiff, and the defendants appeal.--Affirmed.
Decree affirmed.
Walker & McBeth, for appellants.
Robt and H. B. Sloan and J. C. Calhoun, for appellee.
The controversy in this case turns upon a question of fact. Was the plaintiff the owner of the real estate in question, or was her husband the owner thereof?
One or the other of them acquired the title by warranty deed from one John Miller on November 24, 1903. This deed was lost before it was recorded, and was not found until after the beginning of this action. It was found before the trial, and was introduced in evidence. Such deed on its face runs to the plaintiff as grantee. Such deed, however, shows upon its face that since it was first written there was a change or erasure of the first initial in the name of the grantee. The plaintiff's name is "Mary A. Tharp." Her husband's name is "W. M. Tharp." The name of the grantee appearing in the deed is "M. Tharp." The contention of the defendants is that the name as originally written was "W. M. Tharp," and that it was altered after delivery by the erasure of the "W." The contention of the plaintiff is that the name of the grantee was originally written in the deed as "M. M Tharp" (this was the name of a former wife of the plaintiff's husband); that upon discovery of the mistake the first initial was eliminated by erasure by the grantor, Miller, before delivery. Miller died before the trial. That an erasure of an initial was made in the deed after it was written is apparent upon its face, and is not disputed by either side.
The crucial question is, Was the erasure made before delivery or after? The burden was upon the defendants to prove that the apparent alteration was made after delivery. Such fact being proved, the burden of explanation would then fall upon the plaintiff. An erasure or alteration apparent upon the face of the instrument raises no presumption that it was made after delivery. Hagan v. Insurance Co., 81 Iowa 321, 46 N.W. 1114; McGee v. Allison, 94 Iowa 527, 63 N.W. 322. The contention of the appellant at this point is that the only burden upon him is to show that an alteration was in fact made, and that the burden is then cast upon the plaintiff to show that such alteration was made before delivery or otherwise to explain or excuse. There are some jurisdictions where this rule is maintained. Jordan v. Stewart, 23 Pa. 244. Appellant cites the following cases in support of his contention: Robinson v. Reed, 46 Iowa 219 at 220; Smith v. Eals, 81 Iowa 235, 46 N.W. 1110; Conger v. Crabtree, 88 Iowa 536, 55 N.W. 335; Shroeder v. Webster, 88 Iowa 627, 55 N.W. 569; First National Bank v. Zeims, 93 Iowa 140, 61 N.W. 483; Maguire v. Eichmeier, 109 Iowa 301, 80 N.W. 395; Rambousek v. Mystic Toilers, 119 Iowa 263. None of these cases sustain appellant's contention in this respect. Some of them are cases wherein the alleged alteration was shown to have been made after delivery, and where the burden of explanation was thereby thrown upon the party offering the instrument. But none of them dispense with the necessity that it be made to appear that the alleged alteration was made after delivery before any presumption of fraud can arise therefrom.
An erasure or interlineation appearing upon the face of an instrument is not an alteration in a legal sense unless made after delivery. This discrimination, however, is not always observed in the use of such terms, and the word "alteration" is often used in the books as synonymous with the word "erasure" or "interlineation." If there is any inconsistency in the language of our cases at this point, it will be found to arise from the double sense in which the word "alteration" is sometimes used.
Turning now to the question of fact, the evidence is very conflicting. If the instrument itself had not been produced in evidence, the testimony on behalf of the defendants would be quite persuasive. The widow of Miller and the notary public both testified that W. M. Tharp was the grantee in the deed as originally drawn. Miller himself took the deed when it was drawn. The only direct evidence of its actual condition at the time he delivered it is that of the plaintiff and her husband. They testify that it is in the same condition now that it was at the time of the delivery and that the erasure was explained by Miller. The case turns upon the truth or falsehood of this testimony as to the actual condition of the deed at the time of delivery. The circumstances are such that this testimony should be scrutinized carefully in the light of the whole record, and we have subjected it to that process. It is not necessarily inconsistent with the testimony of Mrs. Miller and of the notary public. Good reasons are also shown why the deed should have been made to Mrs. Tharp rather...
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