Walker v. Walker

• Decision Date: 30 September 1869
• Citation: 46 Tenn. 571
• Parties: Walker v. Walker et als.
• Court: Tennessee Supreme Court

46 Tenn. 571

Walker

v.Walker et als.

Supreme Court of Tennessee.

September Term, 1869.

FROM KNOX.

At the July Term, 1867, there was a decree in this case for the complainant, and an appeal by respondent. Chancellor O. P. TEMPLE, presiding.

BAXTER, CHAMPION and RICKS, for Complainant.

T. A. R. NELSON and HALL, for Respondents.

ROBERT MCFARLAND, Special Judge, delivered the opinion of the Court.

The complainant alleges that her husband, Elijah J. Walker, died about February, 1864, seized and possessed of an undivided moiety in two tracts of land in Knox County, described in the bill, the defendant, Thomas J. Walker, being the owner of the other half; that said Elijah J., died without issue, leaving his brothers and sisters, the said Thomas J. and the other defendants, his heirs at law. The complainant prays that dower be assigned her out of said lands. As evidence of her husband's title, she refers to two deeds on the Register's books, of Knox County, from Wilburn W. Walker to said Thomas J. and E. J. Walker, dated the 1st October, 1859. The answers of Thomas J. and Reuben R. Walker, another brother, assert that the lands belong to them, the said Thoms J. and Reuben R. Walker; that the original deeds from Wilburn W. Walker, referred to in the bill, were made to them, and not to Thomas J. and E. J. Walker, as charged in the bill. The said Thomas J. files with his answer, copies from said original deeds, and says that the originals themselves will be shown to the court, if need be?? The answers of the other defendants say that the lands belong to said Thomas J. and Reuben R. Walker, and disclaim any interest therein as the heirs at law, of E. J. Walker, deceased.

The copies of the deeds filed with the answer of the defendants, show the deeds to be from Wilburn W. Walker to Thomas J. and Reuben R. Walker. The copies from the Register's books show the deed to be from Wilburn W. Walker to “Thomas J. and E. J. Walker;” that is, the copy of the deed for 157 acres is to Thomas J and E. J. Walker, throughout the deed. In the copy of the other deed, in the first part, it is stated to be an indenture between Wilburn W. Walker, of the one part, and Thomas J. and Reuben R. Walker, of the other part; but in the conveying part, it is from Wilburn W. Walker to Thomas J. and E. J. Walker. The copies do not, in other respects, materially differ.

The complainants procured an order to be made upon the defendants to file the original deeds, and they were accordingly filed. They appear to be deeds from W. W. Walker to Thos. J. and “Reuben R. Walker,” but they bear upon their face unmistakable evidences of alteration. The rule is familiar, that a party introducing a deed, bearing upon its face evidence of alteration, must explain the alteration, or the deed will be rejected. The copies introduced by the complainant, as well as those introduced by the defendant, are but secondary evidence, and can not be read as the evidence of the title, except in the absence of the originals. The original deeds are not supposed to be in the possession of the complainant; and the certified copies from the Register's books would, in the absence of the originals, be sufficient for her purpose, but when the originals are produced, they are the higher evidence. In this case, the originals bear upon their face, evidences of alteration, and must be rejected until explained. However, both parties predicate their rights upon the same deeds; and the question is, to whom were the deeds actually executed, to Reuben R. Walker, or to E. J. Walker? And for the purpose of ascertaining how this fact is, both the originals and the copies, may be looked to. It is argued that the bill is not properly framed for the purpose of obtaining the relief sought; that the bill should have been for the purpose of reforming the deeds. We think, that for the purpose of asserting complainant's right to dower, the bill makes the proper issue: that is to say, did Elijah J. Walker die seized and possessed of an undivided moiety in these lands? The complainant is not supposed to be in possession of the original deeds, or to know that they had been altered; the bill does not so state; the deeds are the evidences of the title, and go to the heirs; and they would be the proper parties to seek relief of that character.

Did Elijah J. Walker die seized and possessed of an interest in these lands? If so, it is conceded that he acquired the title under the deeds referred to. To whom were these deeds executed? To Thomas J. and Reuben R. Walker, or to Thomas J. and E. J. Walker? It is very manifest that these deeds were originally written to Thomas J. and Reuben R. Walker. And it is further manifest, that, at some time either before, or at the time of their execution, or afterwards, the deeds were altered, in the one for 157 acres, by drawing parallel lines across the words, “Reuben R.,” or as it is written in one place, “Reuben W.,' wherever the name occurs in the deed, and interlining letters above, one letter above and between “Reuben” and “R,” and the other, above and between “R” and “Walker.” The other deed was altered in the same manner, except that the alteration occurred in but one part of the deed, and that is the conveying part.

It is argued for the complainant, that the letters thus interlined were the initial letters, “E. J.,” so as to make the deed read to “Thomas J. and E. J. Walker,” in the place of “Thomas J. and Reuben R. Walker,” as originally written; and that this alteration occurred before the execution of the deeds.

It is further apparent, that these deeds were again altered, by an attempt to remove the letters that had been interlined, and also removing, as far as possible, the parallel lines that had been drawn across the “Reuben R.,” so as to restore the deeds to the form in which they were originally written; that this second alteration, or removing of the first alteration, was effected by ““scraping” the paper with some sharp instrument, so as to remove, as far as possible, the letters that had been interlined, and all evidences of the first change.

The deeds were acknowledged and registered the 20th of April, 1861. One proposition is self-evident: The deeds were either falsely registered, or the copies made upon the Register's books show how they stood at the time they were registered. The Register being a sworn officer, in the absence of any proof to the contrary, we must presume that he discharged his duty faithfully, and registered the deeds correctly.

The certificate of the County Court Clerk being also the act of a sworn officer, will be taken as true, in the absence of proof to the contrary.

The registration of these deeds, then, establishes, that, at that time, they were deeds to “Thomas J. and E. J. Walker;” and from this it necessarily results, that this second alteration, by which the first change was removed or obliterated, occurred after the registration of the deeds.

The registration of the deeds also shows the nature of the first change--that is, that the letters that were interlined were “E. J.,” and in fact, traces of these letters can be seen in the original deeds.

When did this first alteration occur? Before, or at the time of the execution of the deeds, or afterwards? Were these alterations fraudulent?

It is in proof that at the time these lands were purchased, E. J. Walker was not in the country, and knew nothing of it; that the purchase was first negotiated for the benefit of Thomas J. and Reuben R., and in fact, the negotiations were probably first commenced by Reuben R.; but we think, that, in reality, Elijah Walker, Sr., the father of the parties,...