Vogle v. Ripper

• Decision Date: 30 April 1864
• Citation: 85 Am.Dec. 298,1864 WL 2970,34 Ill. 100
• Parties: HENRY VOGLE et al.v.ADAM RIPPER.
• Court: Illinois Supreme Court

34 Ill. 100

1864 WL 2970 (Ill.)

85 Am.Dec. 298

HENRY VOGLE et al.

v.ADAM RIPPER.

Supreme Court of Illinois.

April Term, 1864.

ERROR to Circuit Court of Peoria County.

Foreclosure bill filed by defendant in error against plaintiff in error, to which the defense was set up that the mortgage in question had been discharged by reason of an alteration of the notes (to secure which it had been executed), after their execution, by changing the rate of interest therein stipulated for, from six to ten per cent.

The notes and mortgage in question were executed by Vogle to one Stanberry. The mortgaged premises were afterwards sold by Vogle to Heisel subject to the mortgage, and the alteration in question was alleged in the bill to have been made subsequently by agreement between Vogle, Heisel and complainant. The alteration appears to have been made by Stanberry, and was made to induce complainant to take the notes.

The decree below was for complainant for the amount due upon the notes with interest computed at six per cent., it being considered that it was not shown by the evidence that Heisel was a party to or consented to the alteration.

H. M. Wead, for plaintiffs in error.

C. A. Roberts and R. W. Ireland, for defendant in error.

BECKWITH, J.

The effect of an alteration in a written instrument depends upon its nature, the person by whom, and the intention with which it was made. If neither the rights or interests, duties or obligations of either of the parties are in any manner changed, an alteration may be considered as immaterial. It has been considered that even an immaterial alteration, if fraudulently made, would annul the instrument (2 Pars. on Notes and Bills 572), but this opinion has not been uniformly adopted; and it has been held that the motive cannot be inquired into unless the act itself materially affects the rights of parties. Moye v. Herndon, 30 Miss., 110, An alteration by a stranger ought not to destroy the rights of innocent parties. 2 Pars. on Notes and Bills, 574. There is a conflict of opinion regarding the existence of a right of action on an instrument which has been altered by a stranger; but whatever may be considered as the correct rule in that regard, we are unable to perceive any good reason why such an alteration should cancel a debt, of which the instrument was merely evidence. Davidson v. Cooper, 11 M. & W., 778. It ought to be regarded as a spoliation. A material alteration of an instrument, fraudulently made by its holder, justly deprives the wrongdoer of all rights by virtue of it. The identity of the instrument is thereby destroyed, and courts will not assist persons who have been guilty of a fraud to carry out the transaction wherein it was perpetrated. A party who voluntarily and fraudulently destroys the evidence of a debt agreed upon by the parties ought not be allowed to supply its place by other evidence. 2 Pars. on Notes and Bills, 572; Waring v. Smith, 2 Barb. Ch., 135.

In a court of equity a mortgage is regarded as an incident of the debt, and where a mortgagee has released or discharged the debt by a fraudulent alteration or...