Burgess & Co. v. Blake

SHARPE, J. Since the statute in effect inhibits the mortgaging of the wife's property as security for her husband’s debt it will not in the absence of evidence, be presumed that a mortgage which on its face appears to have been given ns such 'security, embraces property of the wife, though her joinder therein be in form that of a mortgagor without being expressly limited to a relinquishment of dower. The harden was on the respondent Cynthia E. Blake to prove what, land of hers, if any, was included in the mortgage sought to be foreclosed. This she attempted to do by introducing as evidence against complainant’s objections a transcript from the record of a deed from Dreisbaek purporting to 'convey to her a part of the land and a deed from E. E. Blake to another part. The court erred in admitting the transcript. Under section 992 of the Code a transcript of a conveyance is admissible in evidence Only when “it appears to the court that the original conveyance lias been lost or destroyed, or that the party offering the transcript has not the custody or control thereof.”—Farrow v. Railway Co., 109 Ala. 448; Hines v. Chancey, 47 Ala. 637; Hendon v. White, 52 Ala. 597; Florence, etc., v. Warren 91 Ala. 533. The original deed of E. E. Blake accompanies the record for our inspection. Excepting an altered part, the entire instrument including certificate of acknowledgement and signatures of officers and parties is written in violet ink. In tire descriptive clause a purple “W” is over-written in black ink with the 'character Fol-loving the W, a ’Character we read as in order to supply sense to the oíanse as originally written, is nearly obliterated with black ink. The effect is to change that which was tíre S. W. of N. W. -j. to S. of N. TV. ;j-, thus increasing the amount of the land included by forty acres above that, which Avas originally described. Another clause, in the original writing specifies the total [109] number of acres conveyed as 200 32-100 while the aggregate according to the change is 240 32-100 acres; 'and so an inconsistency is created which would most probably have been noticed and corrected had the 'alteration preceded execution of the deed. Recognizing the principle as declared in Sharpe v. Orme, 61 Ala. 263, that an alteration in a deed will be presumed to have been made prior to its execution unless iit be of a character to excite; suspicion that it occurred thereafter, yet we are: of the opinion, treating the question as one of fact, that this alteration must in the absence of explanatory proof be held to have been made after the deed was executed. Though it may have been made by the grantor for the purpose of conveying the additional forty acres and without fraudulent intent, yet for lack of the attestation or acknowledgment which the statute makes essential to a conveyance of land, no title to the added forty acres passed. Unlike writings which evidence executory contracts, a. deed so far as it operates as a conveyance, is not avoided by alteration. Having accomplished transmission of the title, the grantee is not divested of title by alteration of the deed however its covenants may be affected. The original instrument remains a muniment of title, and with or without explanation is evidence of title and may be used as such. The question of its admissibility was well decided in Ala. State Land Co. v. Thompson, 104 Ala. 570, where conflicting authorities are referred to and discussed. See also 2 Am. & Eng. Ency. Law, p. 204; Burnett v. McCluey, 78 Mo. 676. Objections made to the introduction of the deed were properly overruled, but the court erred in omitting from the. decree of foreclosure the S. E. of the N. W. -j of Sec. 8, T. 3, B. 3, E. which was embraced in complainants’ mortgage and which under our construction of the altered deed had never been conveyed to Mrs. Blake. The decree will he reversed and the ca3ise remanded.