Jackson, ex rel. Gould v. Gould

By the Court, Savage, Ch. J. The judge erred in deciding that in the proof of a deed by a subscribing witness, the witness need not state that he knows the grantor. This point was decided, 2 Wendell, 555 ; but as the deed was afterwards proved by a subscribing witness, the error does not become material. He also erred in his charge as to the effect of an alteration of a deed upon the estate conveyed. It was clearly proved that the deed in this case was executed to the lessor by the name of David Gould, jun. The word junior was subsequently erased, and the same word written upon the erasure, but by whom, or when, does not appear farther than this, that in 1828, when presented to a commissioner to be proved, the word junior appeared to be written on an erasure, and since then the same word appears to have undergone another alteration. The effect of an alteration in a deed was considered in Lewis v. Payn, 8 Cowen, 71, and it was there held that the estate granted by a deed is not divested, even by a fraudulent alteration, provided the estate may exist without the deed. Such was this case: the destruction of the deed would not have divested the estate ; neither did the erasure of part of the lessor’s name. The deed was good when executed, and conveyed to the grantee the title ; and there it remains, for aught appearing in evidence in this case. The alteration did not di [367] vest it—the mortgage did not—nor do the affidavits, even though the lessor may have sworn falsely; they do not amount to a disclaimer. Neither was there any evidence of a trust of any kind; a resulting trust may be proved by parol, but no proof was offered raising such a trust. A new trial must be granted, costs to abide the event.