Chessman v. Whittemore

Morton J. delivered the opinion of the Court. The deed of Enoch Hunt to Asa Hunt was undoubtedly valid at its execution, and vested the estate in the latter. This conveyance, not only between the parties, but against all who had notice of it, was as effectual as if the deed had been recorded. The evidence that the tenant had such notice, is clear and abundant. This indeed is scarcely disputed by his counsel. See Jackson v. Elston, 12 Johns. R. 452 ; Priest v. Rice, 1 Pick. 164; M‘Mechan v. Griffing, 3 Pick. 155. The subsequent alterations of the deed, by Asa Hunt junior, even if material and fraudulent, would not invalidate the title acquired under it. The deed was executed, delivered and acknowledged, in one form only. In the various mutations to which it was subjected, it never became the deed of the grantor to any other person than the original grantee. It finally resumed the form in which it was first written and was thus recorded. This made the title of Asa Hunt, which before was valid against the tenant and others having notice of it, good as to all the world. The law in relation to the alteration of deeds and other written instruments is settled. And although it has relaxed from its ancient rigor and strictness, yet it is now well known, that a material alteration of an instrument, whether under seal or not, by a party to it, in name or in interest, invalidates it. Formerly it was holden, that an immaterial alteration by a party or a material one by a stranger, was fatal. But these principles were found to be inconsistent with reason and justice, and have been expunged from the law. Dyer, 262; Shep. Touch. 69 ; Com. Dig. Fait, F 1 ; Pigot's case, 11 Coke, 27 ; Jackson v. Malin, 15 Johns. R. 297 ; Rees v. Overbaugh, 6 Cowen, 746 ; Smith v. Crocker, 5 Mass. R. 538; Hunt v Adams, 6 Mass. R. 519 ; Hatch v. Hatch, 9 Mass. R. 307. There is a manifest distinction between executory contracts and conveyances of prooerty. When deeds of conveyance of [234] real, or bills of sale of personal property, are completed and possession delivered under them, so far as the change of ownership depends on them they are executed, and the property passes and vests in the grantee. The instruments may become invalid, so that no action can be maintained upon the covenants contained in them, and yet the titles which have been acquired under them, remain unaffected. When a person has become the legal owner of real estate, he cannot transfer it or part with his title, except in some of the forms prescribed by law. The grantee may destroy bis deed, but not his estate. He may deprive himself of his remedies upon the covenants, but not of his right to bold the property. This distinction has existed .from the earliest times. See Viner’s Abr. Fait, X. 2. It has always been holden, that even the cancellation of a deed will not divest the grantee of his estate under it. Co. Lit. 225 b, note 136 ; Clavering v. Clavering, Prec. Chan. 235 ; Miller v. Manwaring, Cro. Jac. 399 ; Bolton v. The Bishop of Carlisle, 2 H. Bl. 263 ; Harrison v. Owen, 1 Atk. 520. This doctrine has been explicitly recognized and confirmed in this country, and in our own courts. Jackson v. Chase, 2 Johns. R. 87 ; Lewis v. Payn, 8 Cowen, 75 ; Jackson v. Gould, 7 Wendell, 364 ; Botsford v. Morehouse, 4 Connect. R. 550 ; Gilbert v. Buckley, 5 Connect. R. 262 ; Marshall v. Fisk, 6 Mass. R. 32 ; Hatch v. Hatch, 9 Mass. R. 307 ; Holbrook v. Tirrel, 9 Pick. 105. Many of these cases seem to be directly in point. Asa Hunt having acquired from Enoch Hunt a good title to the demanded premises, he conveyed them to Asa Hunt •junior, who conveyed them to the demandant. This completed the chain of his title. But Enoch having conveyed all his estate, nothing remained for the tenant’s attachment and levy to operate upon; and he therefore could acquire nothing by them. Verdict set aside, and tenant defaulted.