Wicker v. Jones

• Decision Date: 02 May 1912
• Citation: 74 S.E. 801,159 N.C. 102
• Parties: WICKER v. JONES et al.
• Court: North Carolina Supreme Court

74 S.E. 801

159 N.C. 102

WICKER v. JONES et al.

Supreme Court of North Carolina

May 2, 1912

Appeal from Superior Court, Lee County; Cooke, Judge.

Ejectment by L. A. Wicker against Hayes Jones and others. From a judgment for defendants, plaintiff appeals. Modified and affirmed.

In ejectment, where defendants alleged that they were in possession of all the lands which they claimed, and where the findings of the jury established the fact that plaintiff was not the owner of any part of the land in controversy, an affirmative judgment for defendant "that the defendants are the owners and entitled to possession of said lands" is not supported by the pleadings.

This was originally a processioning proceeding, and, it appearing that title to the land was in controversy, it was transferred to the civil issue docket by consent of all parties, and pleadings were filed. The plaintiff complained for the possession of certain lands alleged to be in possession of defendants, and for a judgment clearing the title of certain other parts of the same tract alleged to be in plaintiff's possession. The defendants admitted possession of a portion of the land described in the complaint, which part was described by metes and bounds in the answer, and claimed title thereto. Nearly all the land in controversy was on the west side of Juniper branch, and the remainder on the east side.

The plaintiff offered evidence that Elisha Wicker, his father was dead, and introduced the following deeds: Deed from Daniel McGilvary to A. H. McLeod, dated October 19, 1867 registered in office of register of deeds of Moore county, in Book 82, p. 558, on the 5th day of November, 1867. Deed of Alexander H. McLeod and wife to Elisha Wicker, dated September 16, 1874, registered in the office of the register of deeds of Lee county, in Book No. --, p. --, July 19, 1911. The plaintiff also offered evidence tending to prove that the deeds covered the lands in controversy and other land, and that he and those under whom he claimed had been in possession of the same for more than 30 years, but he admitted that his home was on the land in the deeds outside of the dispute, and that he had not cultivated continuously the land in controversy.

The defendant introduced the following deeds, which were admitted without objection: Deed of Daniel Hall and wife, Mary Hall to Mary J. Jones, dated 15th day of April, 1879, registered in Moore county, September 30, 1885, in Book No. 56, p. 361. The courthouse was burned in that county, and the deed was re-registered the 18th day of January, 1908, in Book No. 40, p. 50. Deed from Daniel Hall and wife to Mary J. Jones, dated the 29th day of April, 1882, registered in the office of the register of deeds in Moore county, September 29, 1885, Book No. 56, p. 359, and re-registered in Moore county on the 5th day of September, 1898, in Book No. 18, p. 470. Deed of W. C. Edwards to Daniel Hall, dated 2d day of April, 1876, registered in Lee county June 19, 1911, in Book of Deeds No. 5, p. 118. Deed of J. W. Burns to Daniel Hall, dated December 31, 1878, registered in the office of register of deeds, Lee county, March 16, 1909, Book of Deeds No. 1, p. 292. There were erasures and interlineations, in material parts, on the first and second of these deeds, and the plaintiff introduced evidence tending to prove that the erasures and interlineations were not in the same handwriting as the body of the deed, that different ink was used, and that they were not made at the date of the deed, but afterwards. The defendant also introduced evidence tending to prove that said deeds covered the lands in controversy, and that she had been in possession thereof for 30 years, and had, during that time, cultivated continuously five or six acres of the land. The home of the defendant was not on the land in dispute.

John B. Cameron, a surveyor, was asked the following question: "Q. Examine that plat, and see if you can locate this description (attorney reading deed of Daniel Hall and wife to Mary J. Jones, dated 15th day of April, 1876). Also this tract (Daniel Hall and wife to Mary J. Jones, dated 29th day of April, 1882). State whether or not, as a surveyor, you can say whether or not this land on the west side of Juniper branch within that line running from 5 to B, B to C, and from C to Juniper branch, and Juniper branch to the beginning, is contained in that description. (Objection by plaintiff. Overruled. Exception.) A. According to your papers, it does. I didn't survey that. I platted it." This witness afterwards testified, without objection, that the deeds of the defendant covered the land in controversy.

Defendant introduced certified copies of the plat of division of the lands of Elisha Wicker, father of the plaintiff. (Objection by plaintiff. Overruled. Plaintiff excepted.) Also certified copy of mortgage of L. A. Wicker to Elisha Watson, dated 20th day of March, 1891. (Objection by plaintiff. Overruled. Plaintiff excepted.) The western line of the land in the division and of the land in the mortgage is Juniper branch. The plaintiff testified that all the land he owned was not embraced in the mortgage.

The only part of his honor's charge excepted to is as follows: "Now, in respect to the two deeds put in evidence by the defendants, and purporting to be made to Mary J. Jones--one dated the 15th of April, 1879, and the other dated the 29th of April, 1882--the plaintiff contends that, according to the evidence on the face of the deeds, there has been, since the execution and delivery of the deeds, a change in the grantee, and that the name of Mary J. Jones has been by such change made the grantee in such deed. Now, the burden of showing this, and that such change was made by the grantee or some one in her interest, or the interest of the defendants, or that it was not made by the grantor or by his consent, is upon the plaintiff."

The following verdict was returned by the jury: "(1) Is the plaintiff the owner of and entitled to the possession of the lands included in the following lines: C to D to 3 to 4 to 5 to B and to C--or any part thereof?" Answer: "No." The court rendered the following judgment: "This cause coming on to be heard, and being heard before his honor, C. M. Cooke, judge, and a jury, and the following issues having been submitted to the jury: (1) Is the plaintiff the owner of, and entitled to, the possession of the lands included in the following lines: C to D to 3 to 4 to 5 to B and to C--or any part thereof? (2) And, if a part, what part? (3) Are the defendants in the wrongful possession of said lands? (4) What damage, if any, is the plaintiff entitled to recover against the defendants? And the jury having answered the first issue, 'No,' it is therefore considered, ordered, and adjudged that the plaintiff is not the owner nor entitled to the possession of the lands within the following lines: C to D to 3 to 4 to 5 to B and to C, as shown on the map on file in this cause, but that the defendants are the owners and entitled to the possession of said lands. It is further adjudged that the defendant recover of the plaintiff and D. D. Buie, surety on the prosecution bond filed in this cause, their costs, to be taxed by the clerk of the court."

The plaintiff excepted and appealed.

A. A. F. Seawell, for appellant.

Hoyle & Hoyle and D. E. McIver, for appellees.

ALLEN J.

When we speak of an "alteration" in a writing, we refer to the legal acceptation of the term, which implies a change made after its execution, and, while an erasure or interlineation may be an alteration, it is not such if made before the final execution of the writing. Under the rule of the ancient common law, as illustrated in its earliest decisions, it was held that any alteration, however insignificant, rendered the writing void, and that the judge must pass on the whole question (Pigot's Case, 11 R. 26b), but this was modified even in the time of Lord Coke to the extent that the alteration must be material, and that the question as to the time when made should be submitted to a jury. In Co. Litt. 225b, it is said that "of ancient time, if the deed appeared to be erased or interlined in places material, the judges adjudged upon their view the deed to be void, but of latter time the judges have left that to the jurors to try whether the rasing or interlining were before the delivery."

Modern authority in England and in the United States has further modified the doctrine until it is now generally agreed that, when an alteration is established, it avoids the instrument, if it is material; that the materiality of the alteration is a question to be decided by the court, without the aid of a jury; that any alteration is material if it affects the identity of the instrument or the rights and obligations of the parties to it; and that the question of the time when the alteration was made is a fact to be determined by the jury. It is also held in all the states, except Missouri and New Jersey, that an immaterial alteration does not affect the validity of the writing.

An alteration by a stranger, without the knowledge of the grantee or obligee, while it cannot enlarge the obligations of the grantor or obligor, does not affect the right to enforce the writing as it was originally executed, and the intent with which the alteration is made is immaterial, unless it is fraudulent, in which event a court will not lend its aid. The cases supporting these principles are collected in the valuable note to Burgess v. Blake, 86 Am. St. Rep. 79, and in the learned and comprehensive article on Alteration of Instruments by Judge John F. Dillon, in 2 Cyc. p. 150.

Many other questions may arise as to the effect of the alteration of instruments, but in the midst of much conflict of...