Wallace v. Harmstad

The opinion of the court was delivered by Gibson, C. J. The doctrine of deeds stands on the principles of the common law: 'the doctrine of commercial instruments stands on the principles of .the law merchant. A deed is a solemn and a formal act: a commercial instrument is neither solemn nor formal. A deed is not intended for circulation or to be subject to alteration by the exigencies of trade; but a promissory note or a bill of exchange may induce new responsibilities while it flits from hand to hand as if it were a part of the general currency. It is not strange, therefore, that a commercial and a common law security should have different consequences in respect of responsibilities to third persons. A fraudulent alteration of either avoids it between the original parties; but the necessities of trade require that a bona fide holder of a bill or a note*be not involved in the consequences of their dealings. On the other hand, the assignee of a bond, whether legal or equitable, takes it subject to defalcation and the equities of the obligor. A decision in the case of a commercial instrument, therefore, cannot be a precedent for a ease like the present. The fraudulent alteration of a deed makes every part of it a forgery; and it is so laid in an indictment. In Rex v. Teague, 1 Eng. Cro. Ca. 35, and in Dawson’s case, 2 East P. C. 979, S. C. 3 Chitty Crim. L. 1042, it was held that a forgery of a material part is a forgery of the whole, because the legal effect of the whole would be changed; and it would seem to be as absurd to claim through the forgery of a deed not locked up in the party’s desk, as to claim through the theft of a horse not locked up in the owner’s stable. There is no case or book in which a deed fraudulently altered has been treated as only voidable. The authorities collected in Shepherd’s Touchstone, at page 68, prove that it is utterly void. The attempt has been made to raise an authority, implied from the defendant’s laches in parting with the possession of the instrument, to fill blanks in it to his prejudice before the ground-rent was conveyed ; but the only case cited to sustain it is that of a check, which is inapplicable to .the present. There is no instance of an implied agency to alter a deed. The case in 2 Lev. 35 is not such. [468] A and B had sealed and delivered a bond to C, and the name of D was afterwards interlined; but he also sealed and delivered it with the concurrence of the others, and it was held to be the bond of all three. The transaction was consummated in the presence of all; and as it was the immediate act of all, there was no agency in the case. The only case that might be supposed to give colour to the argument, is Texira v. Evans, 1 Anstr. 228, cited by Mr. Justice Wilson in the great case of Master v. Miller, 4 Term Rep. 331; which was, however, a case of express authority. Evans, wanting to borrow ¿£400, or as much as his credit would raise, executed a bond with blanks for the name and sum, and sent it into the market by a servant, who filled it up. On non est factum pleaded, Lord Mansfield held it to be a good deed. Mr. Preston, the learned editor of Shepherd’s Touchstone, at page 139, expresses a powerful doubt of the solidity of that decision, inasmuch as it is founded on an assumption that a man may be bound by a deed executed in his name by an attorney not constituted by deed—contrary to a fundamental rule of the common law. That case can be sustained, if at all, only on the ground that the obligor had estopped himself by an act in pais. But it would be unreasonable and inconsistent with the current of human transactions, to require a party to keep his deed under lock and key in order to preserve it from violation. Laymen are not conveyancers, and scriveners employed by them use printed forms to save trouble; but the law would exact extreme vigilance did it require their employers to supervise the filling of the blanks. The exceptions converge to this one point; and they have not been sustained. Judgment affirmed.