Yeager v. Musgrave

Opinion by GreeN, Judge : The bill in this cause was a bill in the nature oí a bill of interpleader filed by Ambrose Yeager, executor of Asa Mus-grave, alleging, that he had in his hands as such executor certain bonds and notes and the proceeds of certain other bonds and notes payable to his testator, which he had received after his death from E. G. Musgrave, the son of his testator, who claimed that they had been given to him by the testator about a year before the testator’s death as a gift so as to 'make the amount, which he would receive from the testator, his father, including a tract of land of nearly 150 acres conveyed to him by his father, equal ,in value to the residue of the testator’s land which he intended to devise after his wife’s death to his daughter Mary E. Roseberry, and which he did devise to her. The bill further alleged, that after the plaintiff had received from E. G. Musgrave these bonds and notes, the said Musgrave brought a suit in chancery in the circuit court of Masou county, against him as executor and -against the distributees, Mary Musgrave, the widow, and Mary E. Roseberry, the daughter of Asa Mus-grave, the husband of the latter, E. F. Roseberry, being also made a defendant, to recover from him the proceeds of these notes, all being particularly described in his bill, which had been collected by him, and for the return to the said Musgrave of such of them as had not been collected, which notes had, it was alleged, been delivered to him under protest, because the said Musgrave did not know, that he could prove, that they had been given to him by his father in his lifetime, which he was now prepared to do; that the answers of the defendants denied, that Musgrave’s father ever gave him the notes, and alleged, that they wei’e placed in his hands to collect for his father’s use; that while this suit was pending, the parties entered into an agreement under seal, whereby said suit was to be dismissed, one of the promises of agree — 102 — ment being that the plaintiff in said suit was to have the said notes and moneys, which he claimed in said chancery cause; that said suit after this agreement was dismissed; that defendants in said suit had notified him not to pass over said notes and bonds to Musgrave nor to pay him any of the proceeds of these notes, which he collected, as had been agreed by this compromise-agreement, as they did not consider it valid or binding on them ; that on the other hand Musgrave had notified him, that unless he paid over the money collected on these notes and returned to him these notes according to the terms of this compromise-agreement, he would sue him. The prayer of the bill is that this controversy may be settled, and a decree be entered by the court directing the plaintiff what to do in the premises. The answers of the widow, Mary Musgrave, and of her daughter, Mar’y E. Roseberry, ask, that this agreement of compromise may be deemed to be null and void; first, because it was obtained from them by fraud and imposition on the part of E. G. Musgrave, and second, because, after it had been executed, it had been fraudulently interlined so as to make a material alteration in its meaning by the agent of the other party to the agreement, E. G. Musgrave. The evidence shows clearly, that no fraud was practiced by Musgrave or by his agent, Eadley, in procuring the execution of this agreement. The facts were, that Eadley as agent for Musgrave at his request went to the residence of the other distributees of his father’s estate to procure, if possible, from them an agreement, that on the dismissal of this suit they would let him have these bonds and notes, and the proceeds of such of them as the executor had collected. They were unwilling to assent to this; but after mature consideration on being told by Eadley, as they themselves in their depositions say, that in making the proposed agreement they would surrender only about $700.00 and two notes one of J. Smith and one of S. W. Somerville, they consented to execute the proposed agreement. One of the grounds, on which they claim to have this agreement set aside as fraudulent is, that Eadley as the agent of Musgrave misrepresented to them the amount, which they would surrender by entering into the proposed arrangment. But there was — 103 — really no misrepresentation or misunderstanding in the matter. These two notes, as the statement of this case shows, amounted with interest on March 8, 1882, the date of this agreement to $1,203.96, and all the other notes and bonds claimed by Musgrave amount with interest on that date to $1,967.15, of which two thirds or $644.77 would be coming to the widow, Mary Musgrave and her daughter, Mary E. Roseberry, as two of the distributees of the estate of Asa Mus-grave, he having by his will made no disposition of his personal estate. So that the amount really surrendered by them in addition to these Smith and Somerville notes was only $744.77. There was no imposition on them according to the statement in their own depositions as to the amount, which they would surrender by entering into the proposed agreement. After carefully examining all the evidence in reference to what preceded the execution of this agreement of March 12, 1882, whereby the matters in controversy in this chancery-suit then pending in Mason county was settled, I can see no evidence of fraud, misrepresentation or duress, for which this agreement could be set aside by the court. It is true, that one of the parties to it, Mary Musgrave, was a very aged woman some seventy-six years old and was quite infirm, but when the proposal of this agreement was made to her by Eadley, the agent of E. G. Musgrave, it was made not to her only but also to her daughter, Mary E. Roseberry and her son-in-law E. F. Roseberry, who really knew more about the subject-matter of the proposed agreement than did Eadley. What was proposed was, that they should agree to permit E. G. Musgrave to have the bonds and notes, which in a chancery-suit then pending he claimed, that his father Asa Musgrave in his litetime had given to him. This suit had beeu pending some two months; and in the bill Musgrave set out in detail each of the bonds and notes, which he claimed had been given him by his father, its date and amount, and this bill the defendants had all answered on oath. These and these only were the bonds and notes, which in the proposed agreement the other parties to it, defendants in the suit, were to surrender. It would seem to be very unreasonable in them to ask that this agreement should be set asicle. be — 104 — cause they were imposed upon by Fadley as to what would be the loss they would sustain by giving up their claim to these notes and bonds. They had far better opportunity of estimating it than Fadley, the agent of Musgrave, with whom this agreement was really discussed and consented to. Asa Musgrave had then been dead nearly three years, and during all that time his son had been asserting his claim to these notes; and it does seem to me the court could not listen to an allegation, that the widow and daughter of Asa Musgrave wore misled as to the amount they were surren- , dering, when they agreed that E. G. Musgrave should have these bonds and notes and the proceeds of such as had been, collected. The evidence shows, that, while the widow and her daughter, Mary E. Roseberry, were willing to give to E. G. Mus-grave all he claimed in the chancery-suit, they were apprehensive, that the proposed agreement might in some way operate a surrender by the widow of something, which had by the will of Asa Musgrave been devised to her, or a relinquishment of some of the moneys, which she had received from her husband’s executor or might have a right to receive as a distributee; and she insisted, that provisions should be put in the agreement, which would effectually prevent this. It is obvious, that Fadley, who drew the agreement, in inserting these provisions wished it distinctly understood, that E. G. Musgrave, his principal, did not intend to surrender his supposed interest in the money, which Mary Musgrave, the widow, had received or should receive from the executor of her husband, as a distributee after his mother’s death. He evidently thought, that on the widow’s death her son E. G. Musgrave, and her daughter Mary E. Roseberry would each be entitled to oue half of all the personal estate, which she as widow and distributee had received from the estate of her deceased husband. This, he took care to insert in the agreement, he still claimed, though he relinguished his imaginary claim on the real estate or to the products of the real estate devised by the will of Asa Musgrave to his widow for life. After this agreement of March 12, 1882, had been executed by all the parties it was left by mutual consent in the hands of Josliua Fadley, who drew it; and a few days — 105 — alter it was thus left in his possession, he. altered it by interlining it as set out in the statement of the case preceding this opinion. This interlineation is in italics, so that it may be readily noticed. It was inserted by Hadley in much blacker ink than that used in the agreement itself, and was not inserted with the fraudulent purpose ot imposing on the parties to the agreement by making them believe it was in the agreement when signed. But it was inserted, because, he thought, it would prevent a misunderstanding of the real meaning to the agreement. It was an obvious interlineation of what was not in the original agreement, as is apparent upon an inspection of the paper, and it was never disputed. This interlineation was made without the knowledge or consent of any of the parties to the agreement. It is insisted by Mary E. Roseberry and her husband, E. E. Rose-berry, that it is a material alteration, which renders void the entire agreement, while E. Gf. Musgrave insists, that it is an immaterial alteration. To determine whether it is a material or immaterial alteration, it is necessary to determine the true meaning ot the agreement, before such alteration was made. The agreement is set out in full in the statement of the case preceding this opinion, and this alteration isineludedin parenthesis and is italicized, so that it may be readily observed. See p. 94. The first part of thib agreement though very badly expressed is perfectly intelligible, when considered in connection with the circumstances surrounding, the parties, when it was executed, and is set out at length in the statement of the case and detailed to some extent in this opinion. Its moaning is obviously, that the defendants to this chancery-suit brought by E. G. Musgrave, one of the parties to the agreement, against Mary Musgrave, Mary E. Roseberry, whose name was by a blunder signed Mary E. Musgrave, her maiden name, and E. E. Roseberry her husband the other parties to the agreement, and the executor of Asa Musgrave, then pending in the circuit court of Mason county would acknowledge the claims and demands of the plaintifi in said chancery-suit and that they would authorize and direct the executor of Asa Musgrave to deliver to E. G. Musgrave all the bonds and notes, which in said suit he claimed that his — 106 — father Asa Musgrave had given to him as a gift in his lifetime, and that the said chancery-suit should he dismissed agreed, each party paying his own costs. The balance of this agreement was when executed in these words : “but we (Mary Musgrave and E. F. Roseberry and Mary E. Roseberry) do not relinquish our claim to any moneys, bonds or other effects that is or may be in the hands of the executor hereafter of the present estate of Asa Musgrave, deceased-; and I, E. G. Musgrave, do not claim only my interest in my mother’s dower, Mary Musgrave, in moneys that was left by my father Asa Musgrave, deceased, at her death (and my interest in the residue what is left'after this claim is paid), if any — left of the present estate; and that I, E. G. Musgrave, do relinquish my claim to the one third of the products of the .farm in possession of E. F. Roseberry that was left for the maintenance of my mother, Mary Mus-grave, left by my father, Asa Musgrave, deceased, by said Roseberry keeping her; that all that may be surplus, he is to have all the right to it forever, and this right of relinquishmeut takes effect from this date.” What is the true meaning of this agreement ? It is very obscure certainly. But though so very obscure I think it can be interpreted and its meaning ascertained, if we consider in connection with it all the circumstances surrounding the parties, when they executed the agreement, which we have of course a right to consider. (Crislip, Guardian v. Cain, 19 W. Va. 442, syll. 19; Depue v. Serpent, 21 W. Va. 327, point 4 syll.; Handsford v. Coal Co., 22 W. Va. 71, point 5 of syll.; Transportation Co. v. Pipe Line Co., 22 W. Va. 614; Findley v. Armstrong, 23 W. Va. 126; Kerr v. Hill, 27 W. Va. 608). * Asa Musgrave, the father of the wife of E. F. Roseberry and E. G. Musgrave, died in 1879 leaving a will, in which he made no disposition, of his personal property, and which therefore on his death went to his distributees one third to each. These distributees were Mary Musgrave, his widow, E. G. Musgrave, his son, and Mary E. Roseberry, his daughter, who was the wife of E. F. Roseberry, all of whom were parties to this agreement. By his -will he provided : “First. — It is my will and desire that my dear wife Mary Musgrave shall occupy and control my dwelling house and — 107 — other buildings upon my home farm in Robinson township, Mason county, West Virginia, and receive and enjoy for her own use one third of the products of said farm during her natural life. “Second. — It is my will and desire that my son-in-law E. F. Roseberry shall cultivate my said farm during the life of my said wife and pay over to her one third of the proceeds thereof, and in the event the said Roseberry declines or refuses to cultivate said farm, then it is my wish that my said wife shall rent said premises to such other party or parties as she may deem proper, but while said Roseberry does cultivate said farm, it is my wish and desire that he shall have two thirds of the products of the same, he paying taxes and repairs of the farm. “Third — It is my wish and desire that my daughter Mary E. Roseberry and her heirs shall have my said farm, with its buildings and appurtenances, at the death of my said wife Mary Musgrave.” E. F. Roseberry after the death of his father-in-law cultivated the farm on the terms set out in this second clause of this will. The last clause in this agreement is : “I, E. G. Musgrave, do relinquish my claim to the one third of the products of the farm in possession of E. F. Roseberry, that was left for the maintenance of my mother, Mary Musgrave, left by father, Asa Musgrave, deceased, by said Roseberry keeping her; that all that may be a surplus, he is to have all the right to it forever, and this right of relinquish takes effect from this date.” It is evident, that the writer of this agreement, Joshua Fadley, who was a grossly ignoránt man, and the parties to the agreement had some notion, that, if oiie third of the products of the farm were more than sufficient to support the widow, Mary Musgrave, her children would be entitled to the surplus, and that E. G. Musgrave, one of her children, would be entitled to half of this surplus, and by this last clause in this agreement he agrees to relinquish his share of this surplus in the farm products and to let E. F. Roseberry have it. Of course he had no pretence of claim of any kind to this surplus, and this last clause of the agreement is wholly inoperative. It is only useful in interpreting — 108 — the preceding clause, which is, “And-1, E. G. Musgrave, do not claim only my interest in my mother’s dower, Mary Mus-grave, in money left by father, Asa Musgrave, deceased, if any, left of the present estate.” As I understand this clause, as E. G. Musgrave had a notion that he had a right to one half of the surplus of the one third of the crops upon the farm after his mother’s support, which in the last clause of this agreement he agreed to relinquish in favor of his brother-in-law, E. E. Roseberry, so he had a notion, that he might have a like interest or some sort of interest in the moneys which his father’s executor had paid or might pay to his mother, Mary Musgrave, as a distributee of Asa Musgrave. This money so paid to her or to be paid to her as distributee by her husband’s executor, the ignorant writer of this agreement calls her dower, and like the dower-land he conceived, that on the death of the widow it would go to the children of the intestate, and that E. G. Musgrave would then be entitled to one half of it. Tie therefore in this clause of the agreement declares, that in whatever his mother may in any manner get from his father’s estate in land or its products or in money, which is all called her dower, lie claims only his interest at his mother’s death in the moneys she may receive from the executor of his father and no present interest in these moneys and -no interest in the products of the farm, which she is receiving, either now or in any surplus of these products at her death. Of course all these provisions in this agreement are a mere nullity, as E. G. Musgrave had no kind of interest either in the money, which she might receive as distributee, or in the land or the products of the land devised to his mother, Mary Musgrave; and all these declarations of his claims thereto or relinquishment thereof are mere nullities. When it is borne in mind, that the object of this agreement was simply to end the controversy, which was then pending in the circuit court of Mason county in the chaucery-suit, and that this was intelligibly settled by the first part of the agreement, but that out of abundant caution the ignorant writer of this agreement adds first this useless clause “but we (Mary Musgrave, Mary E. Roseberry and E. E. Roseberry) do not relinquish our claims in any money, bonds or other effects, that is or — 109 — may be in the hands of, the executor hereafter of the present estate of Asa Musgrave, deceased,” and he then adds these foolish and idle provisions in relation to E. G. Musgrave’s imaginary interest in what he calls his mother’s dower, this declaration, that they did not relinquish their interest in the residue ot the personal estate of Asa Musgrave, was of course entirely unnecessary, and without this clause or these clauses about what is called the widow’s dower neither adds to nor subtracts from the agreement which had been previously set forth. They were added doubtless to make clearer the agreement of the parties but only tended to render it obscure; but as they legally have no effect, they leave the agreement just what it was before they were inserted. In exactly the same spirit, to render plainer the meaning of the agreement, the writer of it, Joshua Fadley, who had the control of it by consent of all parties, after it had been executed several days, without the knowledge or consent of any of the parties inserted the clause, which he interlined, and which has been heretofore stated. (Page 94). Its obvious meaning is : I, E. G. Musgrave, also claim my interest in the residue of my father’s personal estate, after the claim to the notes he gave me in his lifetime has been satisfied by the surrender of them and by- the payment to me of such money as has been collected on any of them.” As he had not relinquished any interest of any sort, which he had in his father’s personal estate, it was of course an idle and unnecessary act in Joshua Fadley to make the interlineation. ■ The agreement, after this interlineation was made, meant exactly what it did before. It was therefore an immaterial alteration. It is claimed by appellant’s counsel that Joshua Fadley in making this interlineation was acting as the agent of E. G. Musgrave and that therefore the court should regard it as the act of Musgrave himself, especially as in his answer he claims the benefit of this agreement without saying that in asking for its benefit he did not adopt this interlineation made by his agent Fadley. This seems to me to be entirely unsustained by the record in the cause. The agency of Fadley obviously terminated, when the agreement was executed by all the parties. After that it was left in the hands of Fadley as — 110 — the keeper of the paper for all of- the parties to the agreement and while so acting as the keeper of this agreement for all the parties to it lie made this interlineation in it without the knowledge or consent of any of them. ETor did E. G. Musgrave seek by his answer to obtain any benefit from this alteration in the agreement. In the first place in his answer he insisted, that it was an immaterial alteration, and so far from attempting to get an advantage from it he expressly admits, that the alteration or interlineation was made by Eadley, and states the exact circumstances, under which it was made; and his general prayer at the end of his answer, that said written agreement be enforced against his co-defendants, certainly can not be regarded as asking, that the agreement as improperly altered should be enforced. If it were necessary to refer to any authority to establish this position, that when Eadley altered the agreement, he was not the agent of E. G. Musgrave, I might refer to the case of Hunt v. Gray, Jr., 35 N. J. Law (6 Vroom) 232. The facts in that case were: John E. Hunt as agent for the plaintiff sold for him a horse and took for it a note, which he carried to the plaintiff and then the plaintiff entrusted him with this note for the purpose of having it .discounted for the plaintiff’s use in a bank. Hunt altered the note, while it was in his custody, and after it was so altered, it was discounted by the bank, and the proceeds went to the credit of the plaintiff. It was held, that the alteration of the note was not properly an act appertaining to the transaction, to which his agency extended ; and that the act must therefore be regarded, as though done by a stranger. There was in that case far stronger ground for holding Hunt to be the agent of the plaintiff in the alteration of this note, than there is for holding Eadley to be the agent of E. G. Musgrave in the alteration of the agreement in this case. In truth there would be no more propriety in holding Eadley the agent of E. G. Mus-grave in altering this agreement than in holding any other person, who by mutual consent had the custody of a mutual agreement between two parties, and who might alter it without the knowledge or consent of either, to be the agent in so doing of one of the parties and not of the other. And this, it strikes me, would be absurd. — 111 — The alteration of an agreement or any written instrument, it made by the obligee in a material matter without the assent of the obligor, it is universally agreed, destroys the agreement. (Newell v. Maberry, 3 Leigh 250 ; White v. White, 2 Halstead (N. J.) 175; Burham v. Ayer, 35 N. H. 351; Davis v. Coleman, 7 Ired. L. (N. C.) 424; Marcedy v. Dunlap, 5 Lans. (N. Y.) 365 ; Mills v. Starr, 2 Bailey 359; Pigot’s Case, 11 Rep. 27 a ; Weeks v. Maillerdet, 14 East 568 ; O’Neale v. Long, 4 Cranch 60; Steel’s Lessee v. Spencer, 1 Peters 560 ; Bar-rington, &c. v. Bank of Washington, 14 S. & R. 423; Chesley v. Frost, 1 N. H. 148; Johnson v. Bank of U. S., 2 B. Mon. 311 ; Miller v. Stewart, 9 Wheat. 708; Arrison v. Harmstead, 2 Barr 194. And there are many decisions holding, that the alteration of a deed or agreement by the obligee without the knowledge or consent of the obligor even in an immaterial part avoids the deed or other instrument. (Pigot's Case, 11 Rep. 27 a; Lewis v. Page, 8 Cow. 73; Moore v. Beckham, 4 Binn. 1; Johnson v. Bank of U. S., 2 B. Mon. 311 Dend.; White v. White, 2 Halst. 175 ; Mollett v. Wacherbarth, 5 C. B. 181; Boult v. Brown, 13 Ohio St. 364). But on the contrary it has been held in many cases, that an immaterial alteration in an agreement of any sort will not avoid it, though it be made by the obligee or payee without the assent or knowledge ot the obli-gor or makers. (Perquawket Bridge v. Mathes, 8 N. H. 139; Bowers v. Jewell, 2 N. H. 543 ; Nichols v. Johnson, 10 Conn. 192; Van Horn and Clark, administrators v. Bell, 11 Ia. 465; Aldonis v. Cornwell, L. R. 3 Q. B. 573 ; Falmouth v. v. Roberts, 9 M. & W. 469 ; Smith v. Crooker, 5 Mass. 540 ; Hunt v. Adams, 6 Mass. 519; Langdon v. Paul, 20 Vt. 217 ; Harrington v. Finch, 3 Ohio St. 445). In many cases it has been held, that a material alteration of a deed or other agreement by a stranger without the knowledge of either party would avoid the deed. (Pigot’s Case, 11 Rep. 27a; Davidson v. Cooper, 11 M. & W. 738, and Davidson v. Cooper, 13 M. & W. 352; Dew v. Wright, &c., 2 Halst. 177; Burchfield, v. Moore, 3 Ell. & B. 683, (25 L. & Eq. 123); Gardner v. Walsh, 5 Ell. & Bl. 82, (32 Eng. L. & Eq. 162); Powell v. Divett, 15 East 29; Mollett v. Wacherbarth, 5 C. B. 181). But many other courts hold, that the altera112 ti on of a deed or other agreement by a stranger in a material part will not avoid the instrument, if it can be shown by evidence what the instrument was before altered. So held by the Irish Courts (Swiney v. Barry, 1 Jones 109), and by mány courts in the United States. (Nichols v. Johnson, 10 Conn. 192; Russ v. Overbaugh, 6 Cow. 746; Lewis v. Payne, 8 Cow. 71; Madlin v. Platte County, 8 Mo. 235; Davis v. Carlisle, 6 Ala. 707; Warning v. Smith, 3 Barb. 404; Jackson v. Malin, 15 Johns. 203; City of Boston v. Benson, 12 Cush. 61). It is universally agreed, that, if a bond, deed or other agreement be altered in an immaterial part by a stranger without the privity or knowledge of the obligor it will not avoid the deed or other instrument. , (Pigot’s Case, 11 Rep. 27a; U. S. v. Hatch, &c., 1 Paine 342; State v. Miller, 3 Gratt. 339; Waugh & wife v. Bussell, 5 Taunt. 707, (1 Eng. Com. L. R. 241); Trew v. Burton, 1 Cr. & Mee. 533, 535 ; Henfru v. Bromley, 6 East 309). These cases show, that there is much uncertainty in many cases as to the effect, which an alteration of an agreement will produce; and that under certain circumstances some of the courts would hold a deed avoided by such alteration, while under the same circumstances other courts would not hold the agreement void by reason of such alterations. But all the courts, as we have seen, are agreed upon two propositions, one, that if the obligee in an agreement alter it without the knowledge of the obligor in a material part, such alteration will render the agreement void ; the other, that if a stranger alter an agreement in an immaterial manner and without the privity of the obligee, such alteration will not avoid the agreement. We have seen, that the ease before us belongs to this last class. The agreement was altered by Joshua Eadley in an immaterial manner, and when he made this immaterial alteration, he was a stranger to the agreement, he not being then the agent of the obligee in the agreement. Our conclusion therefore is, that this agreement is valid and binding on the defendants, Mary Musgrave and E. E. and Mary E. Roseberry, it not having been procured by fraud or duress nor avoidéd by the alteration of it made after its execution. We are therefore of opinion, that the decree of the court — 113 — below rendered on February 24, 1883, should be affirmed, and that the appellants should pay to the appellees their costs about their defence in this Court expended and $30.00 damages, and that this cause should be remanded to the circuit court of Mason county with instructions that it be further proceeded with according to the principles governing courts of equity. Afitrmed. Remanded.