Whitewater Lumber Co. v. Langford

• Decision Date: 19 May 1927
• Docket Number: 3 Div. 787
• Citation: 216 Ala. 510,113 So. 525
• Parties: WHITEWATER LUMBER CO. v. LANGFORD et al.
• Court: Alabama Supreme Court

113 So. 525

216 Ala. 510

WHITEWATER LUMBER CO. v. LANGFORD et al.

3 Div. 787

Supreme Court of Alabama

May 19, 1927

Rehearing Denied June 30, 1927

Appeal from Circuit Court, Autauga County; George F. Smoot, Judge.

Bill in equity by the Whitewater Lumber Company against Maggie E Langford and another, to correct and reform a timber deed. From a decree denying relief, complainant appeals. Affirmed.

Rushton Crenshaw & Rushton, of Montgomery, for appellant.

P.E Alexander and Gipson & Booth, of Prattville, and Hill, Hill, Whiting, Thomas & Rives, of Montgomery, for appellees.

BOULDIN J.

Maggie E. Langford sold and conveyed certain standing timber on her lands to the Whitewater Lumber Company; her husband, R.J. Langford, joining in the deed. The deed fixed a limited time for removal of the timber, with option to extend or renew at the expiration of the time limit upon payment of $100 per annum for such extension. The deed contained a reverter clause.

The grantee claims the time limit fixed by the deed was seven years, and before it expired, tendered the $100 required for one year's renewal or extension. The grantor refused the tender upon the ground that the time limit was six years, and had expired before the offer to renew. The bill was filed by the grantee to enforce the covenant or option to renew. From a decree for the respondents on pleading and proof, this appeal is taken.

The deed was typewritten, and in the original draft "six" years was inserted as the time limit. Thereafter "seven" was inserted with pen and ink in the same space in lieu of "six." Complainant alleges this alteration was by agreement and made before the deed was signed by the grantors. Respondents deny this, and allege the alteration was made after the execution of the deed and without the consent of the grantor.

This issue presents the sole question for review. The cause was heard below upon depositions in writing, and we are required to review the decree without presumption in favor of the finding of the trial judge.

In E.E. Yarbrough Turpentine Co. v. Taylor, 198 Ala. 202, 73 So. 458, a case having several features in common with this, referring to the burden of proof, and the presumption upon which it rests, in cases of alteration of instruments, the court said:

"The cases everywhere are in confusion on this general subject; ours, perhaps, not less so than the rest. We think, however, that in cases where the alteration and its effect upon the instrument are apparent, as here, this rule may be gathered: That the burden of explanation results, not as a presumption of law, for with or without explanation the document is admissible in evidence, but as an inference of fact, the weight of which is affected by the appearance of the document, the probable or possible motive for or against alteration, the advantage or disadvantage to the party claiming under it, and such like considerations, the ultimate issue to be determined as a question of fact upon the whole evidence. Burgess v. Blake, 128 Ala. 105, 28 So. 963 ."

Thereafter section 7717, Code of 1923, appeared in the article on "Documentary Evidence," as follows:

"Writing Altered, Who to Explain.--The party producing a writing as genuine which has been altered, or appears to have been altered, after its execution, in a part material to the question in dispute, must account for the appearance or alteration. He may show that the alteration was made by another, without his concurrence, or was made with the consent of the parties affected by it, or otherwise properly or innocently made, or that the alteration did not change the meaning of the language of the instrument. If he do that, he may give the writing in evidence; but not otherwise."

Without attempting to define the full effect of this section, wherein it changes or merely affirms the rule theretofore prevailing in the many contingencies which may arise, we may say in general it deals with alterations made after execution, or apparently so made. The latter portion of the section, in some clauses, deals primarily with alterations in fact made after execution. But, taken in its entirety, it is manifest that, where there is an apparent alteration of such character as to cast suspicion on the instrument, the party "must account for the appearance" before it may be offered in evidence. To that extent it modifies the rule in Yarbrough v. Taylor, supra.

When the instrument upon inspection shows a material alteration, one made after the original was drawn, of advantage to the person offering the instrument and who has held its custody, the general rule, as now modified, casts such suspicion on the paper as requires explanation. The presumption against a claim founded upon the alteration is so far one of law as to require explanation before it may be received in evidence. The doctrine is founded, not so much upon any presumption of fraud or bad faith, as upon public policy, the importance of maintaining the integrity of documents as memorials of transactions, to minimize the risk of fraudulent alterations often difficult to meet after long lapse of time. Hill v. Nelms, 86 Ala. 442, 5 So. 796; Barclift v. Treece, 77 Ala. 528; Hart v. Sharpton, 124 Ala. 638, 27 So. 450; Montgomery v. Crossthwait, 90 Ala. 553, 8 So. 498, 12 L.R.A. 140, 24 Am.St.Rep. 832; Glover v. Gentry, 104 Ala. 222, 16 So. 38; Ala. State Land Co. v. Thompson, 104 Ala. 570, 16 So. 440, 53 Am.St.Rep. 80; 2 C.J. 1290,§ 216.

In 1917 the Whitewater Lumber Company was active in acquiring timber, buying from sundry owners approximately 30,000,000 feet stumpage.

As early as May 8, 1917, this company entered into agreement with Mrs. Langford, through her husband as the active agent, to buy the timber on the Lamar or Golson lands, estimated at about 2,000,000 feet, at $1.50 per thousand, provided she could buy the land and timber, and on May 22d advanced $500, which appears to have been used as part payment on the purchase of the lands from the Lamars. The purchase by Mrs. Langford was consummated in the summer, and the Lamar deed recorded August 11, 1917.

Meantime an option on the timber to the Whitewater Lumber Company was extended, and the deed finally executed December 7, 1917, and recorded January 14, 1918. The original deed is sent up for inspection. The alteration, by inserting in the typewritten document the word "seven" with pen and ink, the letters being printed rather than written in ordinary form, in place of "six," in two places in the deed, is perfectly apparent, with no evidence therein of intent to conceal the fact of alteration.

The evidence, direct and circumstantial, on the sharp controversy touching this alteration, will be discussed as briefly as possible.

Mr J.L. Cruikshank, former president and manager of the lumber company, gave the only direct evidence for complainant in explanation of the alteration. His evidence was, in effect,...