Alexander v. Hickox

Conveyance — Alteration.—Where title has passed by a deed, no subsequent alteration of the conveyance, by any one, for any purpose, can revest the grantor with the title. Conveyance — Description.—Register’s deed declared void for uncertainty of description.

Appeal from St. Louis Land Court. I. The court below erred in admitting the deed of Thomas Barnett in evidence against the objections of the defendants. That the deed had been mutilated by erasing the name therefrom of one of the grantees, is apparent from an inspection of the deed itself. That it was so mutilated after its delivery to Orme, is clearly shown by the testimony of Thomas Barnett, the maker of the deed. The effect of this mutilation of the deed is to render it inoperative to convey any estate in the lands therein described. (1 New Hamp. 145; M'Johns. 293 ; 8 Cowan, 71; 4 Kent, 439.) In 'Missouri there is practically no distinction between a feoffment and a grant. (4 Kent, C. 439; id. 467; R. C. 1855, p. 1806.) II. It was error in the court below to exclude the deed of the register of lands, offered by the defendants. Section eighteen of the revenue act, approved March 27, 1845, made the register’s deed, executed under that act, prima facie evidence of title in the purchaser, whenever the title to the land sold shall be brought in question. The tax sale recited in this deed was made under this act. The act approved February 13, 1847, is amendatory of the act of March 27,1845, and declares that such deeds so executed and recorded shall, without any further proof, be received in evidence, &c., are embodied in the revenue act of 1855. (R. C. 1855, p. 1360, secs. 33 & 34.) The law of 1847 has been continued in force at the time the deed in question was made, January 1,1859. It is plain that the register had ample authority to make and record this deed, and the statute is mandatory upon the court to receive it in evidence ; what its effect shall be is also declared by the statute. It is prima facie evidence of title in the purchaser under the deed. This deed was a material link in the chain of evidence, constituting the defence in this ease. The exclusion of the deed by the court from the jury, cut out this point of the defence completely. (Sess. Acts 1836, p. 130 ; R. C. 1845, § 18, p. 952; Sess. Acts 1847, p. 122, \ 30; 2 R. C. 1855, § 33 & 34, p. 1360 ; 6 111. 160 ; 11 id. 431; 12 id. 54 ; 13 id. 708.) III. The instruction given to the jury by the court below, at the instance of plaintiffs, is manifestly erroneous. This instruction takes the question of fact from the jury. It tells the jury that the sheriff’s deed to McDonald conveys no title to him in the land described in said deed. If Barnett (against whom McDonald had judgment) owned any interest in the land in question at the time of the recovery of said judgment, or the sale under it, then the sheriff’s deed operated to pass such interest to the purchaser at the sheriff’s sale. I. An alteration of a deed by a grantee, even if made fraudulently, cannot affect the title nor reinvest the title conveyed. (Barnett v. Thorndike, 1 Greenl. 73; Hatch v. Hatch, 9 Mass. 311; Waring v. Smyth, 2 Barb. Ch. 119; Smith v. McGovern, 3 Barb. Sup. C. 404; United States v. West, 22 How. 315; Doe dem. Beauland v. Hirsh, 3 Eng. O. L. 594; 1 Greenl. Ev., § 568; Lewis v. Payne, 8 Cow. 71; Jackson v. Gould, 7 Wend. 264; Chamberlain v. Bell, 7 Cal. 294; Berd v. Berd, 40 Maine, 403; Jacoby v. Jacoby, 9 Cow. 71; Doe dem. Lewis v. Bingham, 4 Barn. & Ab. 677, per J. Holroyd.) It is not believed that there is a single case that holds a contrary doctrine ; even the case in 1st New Hampshire, not denying the general doctrine, but rendering it nugatory by refusing to admit the altered deed for any purpose whatever. The distinction which is attempted to be made, that when the estate lies in grant, if the deed be fraudulently altered, the estate falls with it, unless possession be shown to accompany the deed, is not supported by any of the authorities cited, and arises from a misapprehension of some of the earlier authorities. Any other construction would place all our titles in the position, that any alteration by a grantee would have the effect to change the title to the land, no matter when the change was made, or how many conveyances of the land had been made in the mean time. The cases cited on the other side as to the effect of an altered deed, relate simply to incorporeal hereditaments, things that exist by writing only; and in the case in 8 Cow. 71, it was a lease. In that case the court, at bottom of page 75, states the distinction; but it would seem that even upon a lease it would not have the effect of avoiding the interest in England, from the observations of Chief Justice Campbell, in the case of the Agriculturist Cattle Ins. Co. v. Fitzgerald, 15 Jurist, p. 490. In the States, lands are conveyed only by writing, and seizin accompanies the deed. In 2 Earb. Ch. 188, the true rule is stated, and the reason why a mortgage under the law of New York is void when an alteration is made, when it would not be void in England, is stated. Destruction of a deed, even by consent of grantor and grantee, will not reinvest the title. (Tibeau v. Tibeau, 19 Mo. 78.) The erasure, even if fraudulently made by the grantee, does not prevent the deed being read in evidence as showing a conveyance, though it is inoperative to give the grantee any benefit of any covenants therein contained. (Doe v. Hirsh, 3 Stark, R. 60; Lewis v. Payne, 8 Cow. 71; Jackson v. Gould, 7 Wend. 364; Harnick v. Malin, 22 Wend. 393.) And the principle has been held to apply in England to other instruments besides deeds, conveying the fee simple— Agricul. Cat. Ins. Co. v. Fitzgerald, 15 Jurist, 490, where it is said in relation to what is there called a deed of settlement (being an instrument under which the corporation took their legal existence under the general act) — “There is no ground for saying that if a deed be altered in a material part, it is rendered void from the beginning. It ceases-to have any new operation, and no action can be brought in respect to any pending obligation ; * * * but -it may still be given in evidence to prove a right or title created by its having been executed, or to prove any other collateral fact.” So the deed is good to show the conveyance, but would be bad in a suit upon any covenants contained in it. The deed of Thomas Barnett having been made in 1832, and recorded prior to the sale by the sheriff in July, 1846, on an execution against Thomas Barnett, is a better title than that acquired by deed of the sheriff under said execution and sale. (Valentine v. Havener, 20 Mo. 133.) The deed having been recorded the 14/7¿ day of March, 1846, brings this case precisely within the principle decided in these cases. II. The deed of register under tax sale was properly rejected, being void for uncertainty. This question is one for the court to decide and not the jury. (Clemens v. Rannels, decided at the last term.)