Woods v. Hilderbrand

• Decision Date: 31 July 1870
• Citation: 46 Mo. 284
• Parties: R. K. WOODS, Plaintiff in Error, v. J. B. HILDERBRAND, Defendant in Error.
• Court: Missouri Supreme Court

46 Mo. 284

R. K. WOODS, Plaintiff in Error,

v.J. B. HILDERBRAND, Defendant in Error.

Supreme Court of Missouri.

July Term, 1870.

Error to First District Court.

Ewing & Smith, with Burke & Howard, for plaintiff in error.

I. A mortgage until foreclosed, or an entry thereunder for a breach of its conditions, is not such an outstanding title as will bar the right of the recovery of possession in ejectment by the mortgagor against the world. (8 Wend. 616; Kennett v Plummer, 28 Mo. 142; 4 Kent, 157; 6 Hill, 469; 11 Wend. 535; Chinnery v. Blackman, 3 Doug. 391; 1 Hill. on Mortg. 162, § 15 et seq.; Brown v. Snell, 6 Fla. 741; Prescott & Ellingwood, 10 Shepl. 345.)

II. The erasure can not affect the legal title or re-invest the same in any one, or prevent the said sheriff's deed from being read in evidence. (34 Mo. 496; 3 Stark, 60; 8 Cow. 71; 7 Wend. 364; 22 Wend. 393.)

Lay & Belch, with Owens & Wood, for defendant in error.

I. Any material alteration in a deed, made by the party claiming under it, or with his consent, vitiates the whole deed. (Blank v. Miller, 18 Barb. 269; 4 Kent's Com. 501, note 1; 9 Wheat. 580; 22 How. 89; 2 Black, 94.) Whilst it is true that cancellation or alteration of a deed executed and delivered does not have the effect to re-invest the title in the grantee, yet the deed itself is void, and the party who altered it can not recover by it. (Williams on Real Est. 400; McCormick v. Fitzsimmons, 39 Mo. 24-34.)

II. The mortgage of Hinkle is such an outstanding title as will defeat the plaintiff's recovery. (See 12 Mo. 613.) The mortgagee is the legal owner, or the legal title is in him, and he may maintain ejectment against the mortgagor. (38 Mo. 120; 10 Mo. 229.) In an action of ejectment under the general issue, the defendant may avail himself of the defense that the plaintiff has not the present right of possession. (38 Mo. 352.) In the case of McCormick v. Fitzsimmons et al., 39 Mo. 34, Judge Wagner, in his opinion, recognizes the doctrine that the title of a mortgagee is such an outstanding title as will defeat a recovery in ejectment.

BLISS, Judge, delivered the opinion of the court.

The plaintiff brings ejectment, and relies upon a sheriff's deed. He purchased at the sale sundry parcels of land, including the one in controversy, and, after receiving the deed, altered, as is claimed by defendant, the description of one of these parcels, but not the one he seeks to recover in this action. This change in the deed the court held to be fatal, and decided that the whole deed was thereby vitiated, and refused to consider it in passing upon the plaintiff's title.

The defendant also was permitted to prove that the plaintiff, after receiving the deed, mortgaged the property to one Hinkle, and that the debt secured by the mortgage was overdue; but Hinkle had not foreclosed or sought to take possession under the mortgage, and defendant does not claim under him. The court, however, held it to be an outstanding title of which the defendant could avail himself in this action.

In both these positions the court committed manifest error. It is a mistake to suppose that an alteration in a deed of conveyance, after delivery, operates to reconvey the title to the original grantor. A total destruction of the instrument will not have that effect, but the title remains in the grantee, and he may bring ejectment upon it. The title passed by the deed; it has performed its office, and its continued existence or integrity is not essential to the title, although a fraudulent and material change may disable the holder from bringing an action upon its covenants. (1 Greenl., § 568; Lewis v. Payne, 8 Cow. 71; Jackson v. Gould, 7 Wend. 364; Herrick v. Malin, 22 Wend. 388; Alexander v. Hickox, 34 Mo. 496.)

Whether a deed thus altered may be used in evidence of the real grant is, perhaps, not well settled. In Withers v. Atkinson, 1 Watts, 236, and in Chesley v. Frost, 1 N. H. 145, it is held that a fraudulent alteration of a conveyance by the grantee, in a material matter, utterly destroys it; and while the title thereby does not re-invest, the deed can not be used by him for any purpose, either to sustain an action upon the covenants or as evidence of his title. But in Doe v. Hirst, 3 Stark, 60, and in Jackson v. Gould, 7 Wend. 364, an altered deed was allowed to be read in evidence to sustain the title created by it. We are not, however, called upon to give an opinion adverse to the doctrine of Withers v. Atkinson, supra; for in the case at bar the alteration, so far as the land in controversy is concerned, can not be considered a material one. The plaintiff purchased at sheriff's sale several distinct parcels of land. They were all sold separately, and separate deeds might have been executed The description of one of the parcels--from what motive does not appear--was changed by the grantee. Without considering what might be the effect of this change as to that parcel, we can not see how it should affect the conveyance as to the others. As to them the alteration was immaterial, and the deed remains in full force, and should have been received as evidence of the plaintiff's title.

The ruling of the court upon the second point contradicts the long and well-settled doctrine as to the relation of the...