Summary
In Nunnery v. Cotton, 8 N.C. 222, it was held that any alteration by the obligee in a bond, whether material or not, avoided it.
Summary of this case from Wicker v. JonesOpinion
December Term, 1820.
Any alteration of a deed or writing, if made by the party claiming benefit under it, avoids it, whether the alteration be in a material and obligatory part or in an immaterial or in an useless part: provided, it be done by design.
THIS was an action of debt on a bond, payable originally to one Myrick, and by him endorsed to the plaintiff. From WARREN. The defendant pleaded non est factum and the statute against gaming. Upon the trial the plaintiff proved the bond by the testimony of witnesses who knew the handwriting of the defendant, which was received, as the bond was unattested upon the face of it. It was contended on the other side, however, that it had been witnessed and that the plaintiff or his assignor had cut off the witness's name to prevent his disclosing that the bond was founded on a gaming consideration or with some other fraudulent intent; and upon the inspection of the paper itself it appeared probable enough that the suggestion was true. It was originally written on a small piece of paper, and from the right-hand side of it where the defendant's signature was (223) it appeared to have been cut so as just to leave the obligor's name and to go in a sloping direction to the left, where a bond is usually attested, so as just to leave the writing of the body of the bond; and the upper part of the letters of the word "Teste" remained still plainly enough to be made out upon a critical examination. They could not have been entirely separated without cutting off some of the words of the bond. The defendant also called a witness, who lived with Myrick at the time the bond bore date, who said that he did not know upon what consideration the bond was given; that he knew that Myrick and Cotton often played at cards about that time, and did not know of any other dealings between them; but that he had no knowledge of the defendant's executing a bond for his losings. The plaintiff objected to the evidence of the gaming unless the defendant could show that this particular bond was infected therewith, but the court received the testimony. The judge also charged the jury that if they believed that a witness's name had been cut off by the plaintiff or the endorser while he had it, or if the word "Teste" alone or any other word had been cut off by them with the view of altering the bond, they should find for the defendant, for that, in point of law, the paper was thereby avoided and was no longer the act and deed of the defendant. And the jury accordingly returned a verdict for the defendant upon the general issue. The plaintiff moved for a new trial because improper evidence had been received and because improper instructions had been given to the jury, but the court refused the motion and gave judgment for the defendant, and the plaintiff appealed.
That a fraudulent mutilation has been made of this bond is manifest from an inspection of it, for parts of the letters which form the word "teste" are still remaining; whence the jury probably concluded that the witness's name had been taken off for the purpose of suppressing evidence of the consideration. If the witness's name were taken away it clearly destroyed the deed, by whomsoever done, since it was altering it in a material part. But if no witness's name were there and only the word "teste" has been cut off (a supposition difficult to make), still, if done by the obligee, it equally avoids the deed, and that question of fact was left to the jury. The only doubt is whether the word "teste" forms a part of the deed. I think the rule, if stated in precise terms, is that any alteration in the writing which the parties make to evidence their agreement, if made by the party claiming benefit under it, avoids it, whether the alteration be made in an obligatory or useless part; and more especially if done, as in this case, with a fraudulent design. If the party to whom a bond be given alter it in a material part it is conceded on all hands that it will avoid it. The reason of the rule is equally applicable to an alteration in an useless part, and in odium spoliatoris ought alike to avoid it. It would be dangerous to countenance the least relaxation of a rule which guards so effectually the purity of written documents upon which the most cherished interests of men depend; nor do I think that the plaintiff should escape merely with the loss of the debt if the name of the subscribing witness were cut off with a fraudulent intent. The person doing the act and he who offers the paper in evidence with a knowledge of its having been done are guilty of a serious offense. The judgment must be
Affirmed.
It is very probable, from the whole complexion of this case, that the finding of the jury is right, but a new trial is moved for because the judge received improper evidence and because he misdirected the jury. As to the (225) first, I agree perfectly with the judge that the testimony was proper; but I do not altogether agree with him as to what was said relative to the alteration of the note or the paper on which the note was written. I admit that if the bond was altered by the obligee in either a material or immaterial part it thereby became void. But if a word or words be written on the same paper on which the obligation is written and they be neither a material nor immaterial part thereof, if in fact they do not belong to it and are no part of it, and those words be cut off, the obligation will not thereby be avoided. So, in the present case, admitting that the word "teste" (and no other part of the obligation) had been cut off, I think that circumstance would not avoid it, let the intention be what it might. But a bad intent ought not to be inferred from an innocent or useless act. If the charge had been to the jury that if they believed that not only the word "teste" but also the name of a witness had been separated from the paper, they should find for the defendant on the plea of non est factum, there could be no objection to it; for, although the attestation of a deed is said not to be of its essence, yet it is a mode of proof agreed upon by the parties and is so far a part of it. For these reasons it seems to me there ought to be a
New trial.
Cited: Smith v. Eason, 49 N.C. 38.
(226)