Goodwin v. Norton

Savage, J. Real action. At one time, George M. Freeman was the owner of the demanded premises. “ To protect himself from his creditors,” he conveyed them to his son Gersham C. Freeman. Later the father and son joined in a deed of the same to Asahel Goodwin, who went into possession. At a still later date, as appears by the testimony of George M. Freeman, Asahel Goodwin took this last named deed, which had never been recorded, to George M. Freeman, who was one of the grantors, and said he “had got into difficulties, and would like to alter it.” Thereupon, in the presence of this grantor, he erased his own name, “Asahel,” from the deed, and inserted in its place the name of “Harriet,” his wife. Harriet was not present, and it does not appear that she, at that time, had any knowledge of the transaction. This deed in its altered form was recorded May 14, 1870, and has since become lost. On July 14, 1879, the premises were attached as the property of Asahel Goodwin in the suit of John Goodwin, who subsequently levied upon the same. No objection is raised to the regularity of the levy. John Goodwin conveyed to the demandant in 1881. Harriet Goodwin conveyed to the tenant-in 1894, and he is now in possession. Asahel Goodwin and his wife Harriet, and his sister Emily, the demandant, lived together upon the premises for many years, and we think there is not sufficient evidence upon which to base a title [537] by disseisin in either Harriet or Emily as against the other. .In fact, neither party seriously claims it. The first point made by the tenant is that the testimony of George M. Freeman, one of the grantors, is inadmissible to show the alteration in the deed. We think otherwise. His testimony does not tend to vary or contradict or avoid the deed which he made. It serves rather to show exactly what that deed was. Nor do his statements come within the rule excluding declarations, to which the tenant has cited several authorities. His statements are found in his sworn testimony. They are not declarations. They support the original deed, and prove that Asahel was the grantee named therein. Furthermore, the tenant contends that the effect of the alteration in the deed, and the acceptance of it in its altered form by Harriet, was to vest the title in her. We do not think so. It is unnecessary to inquire what might have been the effect if all of the parties to the unrecorded deed had consented to the alteration and to the delivery to Harriet. Such is not this case. Prior to the execution and delivery of the deed to Asahel, the title was in Gersham C. Freeman. Although it had been conveyed to him by his father to defraud the latter’s creditors, still, as against his father, his title was absolute. He alone could convey. It does not appear that Gersham, the essential grantor, ever consented to the alteration, or even knew of it. It seems clear to us that without his consent, no alteration by the grantee could have been effectual to vest the title in Harriet. She therefore took no title by grant from Gersham. The alteration was ineffectual. We think the rule is as stated by Mr. Greenleaf: “ If the grantee of land alter or destroy his title deed, yet his title to the land is not gone. It passed to him by the deed; the deed has performed its office as an instrument of conveyance, and its continued existence is not necessary to the continuance of the title in the grantee; but the estate remains in him until it has passed to another by some mode of conveyance recognized by the law.” 1 Greenl. on Evidence, § 568. Lastly, the tenant insists that the demandant, claiming under [538] Asahel, is estopped to set up a title against those claiming under Harriet. If we assume that Harriet had no knowledge that the deed ran originally to Asahel and had been altered by inserting her name as grantee instead (an assumption not supported by any great degree of probability under the circumstances of this case,) still we think the tenant cannot be aided by the doctrine invoked. There is no proof that Harriet was deceived, or misled, or prejudiced by the conduct of Asahel. There is no proof that she did any act in consequence of it, or any act whatever with reference to the premises, except to continue to live upon them with Asahel, her husband. There is no proof nor presumption that she paid any part of the consideration for the original conveyance, nor that she paid any consideration for the attempted transfer to herself. The transactions were without consideration, so far as she was concerned. There is an entire lack of some, of the essential elements of an equitable estoppel. The tenant stands'in no better position than Harriet, his grantor. He is merely her donee. He took only such title as she had. It is the opinion of the court that the title to the demanded premises remained in Asahel, notwithstanding the alteration of the deed, and passed by levy from him to John Goodwin, and from John to the demandant. Judgment for demandant.