Tharp v. Jamison

Evans, J. The controversy in this case turns upon a question of fact. Was the plaintiff the owner of the real estate in question, or was her husband the owner thereof? One or the other of them acquired the title by warranty deed from one John Miller on November 24,. 1903. This deed was lost before it was recorded, and was not found until after the beginning of this action. It was found before the trial, and was introduced in evidence. Such deed on its face runs to the plaintiff as grantee. Such deed, however, shows upon its face that since it was first written there was a change or erasure of the first initial in the name of the grantee. The plaintiff’s name is “Mary A. Tharp.” Her husband’s name is “W. M. Tharp.” The name of the grantee appearing in the deed is “M. Tharp.” The contention of the defendants is that the name as originally written was “W. M. Tharp,” and that it was altered after delivery by the erasure of the “W.” The contention — 79 — of the plaintiff is that the name of the grantee was originally written in the deed as “M. M. Tharp” (this was the name of a former wife of the plaintiff’s husband); that upon, discovery of the mistake the first initial was eliminated by erasure by the grantor, Miller, before delivery. Miller died before the trial. That an erasure of an initial was made in the deed after it ivas written is apparent upon its face, and is not disputed by either side. 1. Alteration of instruments: burden of proof. The crucial question is, Was the erasure made before delivery or after? The burden was upon the defendants to prove that the apparent alteration was made after delivery- Such fact being proved, the burden of explanation would then fall upon the plaintiff. An erasure or alteration apparent upon the face of the instrument raises no presumption that it was made after delivery. Hagan v. Insurance Co., 81 Iowa, 321; McGee v. Allison, 94 Iowa, 527. The contention of the appellant at this point is that the only burden upon him is to show that an alteration was in fact made, and that the burden is then cast upon the plaintiff to show that such alteration was made before delivery or otherwise to explain or excuse. There are some jurisdictions where this rule is maintained. Jordan v. Stuart, 23 Pa. 244. Appellant cites the following cases in support of his contention: Robinson v. Reed, 46 Iowa, 220; Smith v. Eals, 81 Iowa, 235; Conger v. Crabtree, 88 Iowa, 536; Shroeder v. Webster, 88 Iowa, 627; First National Bank v. Zeimes, 93 Iowa, 140; Maguire v. Eichmeier, 109 Iowa, 301; Rambousek v. Mystic Toilers, 119 Iowa, 263. None of these cases sustain appellant’s contention in this respect. Some of them are cases wherein the alleged alteration ivas shown to have been made after delivery, and where the burden of explanation Avas thereby thrown upon the party offering the instrument. But none of them dispense with the necessity that it be made to appear that the alleged — 80 — alteration was made after delivery before any presumption of fraud can arise therefrom. 2. Same. An erasure or interlineation appearing upon the face of an instrument is not an alteration in a legal sense unless made after delivery. This discrimination, however, is not always observed in the use of such terms, and the word “alteration” is often used in the books as synonymous with the word “erasure” or “interlineation.” If there is any inconsistency in the language of our cases at this point, it will be found to arise from the double sense in which the word “alteration” is sometimes used. 3. same: evidence. Turning now to -the question of fact, the evidence is very conflicting. If the instrument itself had not been produced in evidence, the testimony on behalf of the defendants would be quite persuasive. The widow of Hiller and the notary public both testified that W. H. Tharp was the grantee in the deed as originally drawn. Hiller himself took the deed when it was drawn. The only direct evidence of its actual condition at the time he delivered it is that of the plaintiff and her husband. They testify that it is in the same condition now that it was at the time of the delivery, and that the erasure was explained by Hiller. The case turns upon the truth or falsehood of this testimony as to the actual condition of the deed at the time of delivery. The circumstances are such that this testimony should be scrutinized carefully in the light of the whole record, and we have subjected it to that process. It is not necessarily inconsistent with the testimony of Mrs. Miller and of the notary public. Good reasons are also shown why the deed should have been made to Mrs. Tharp rather than to her husband. The husband had formerly owned this property. He had originally purchased it in 1901 subject to a mortgage. The mortgage was held by Hiller. Hiller foreclosed the mortgage, and sold the property at execution sale, and took a — 81 — sheriff’s deed therefor in September, 1903. Tharp was men in failing circumstances, and was owing. his wife several hundred dollars for money received from her about the time of their marriage. Miller agreed to convey the property for the amount of his debt plus expenses. This amount was received from Tharp by certain notes under an arrangement between him and his wife that it was to apply upon the indebtedness to her. After the property was acquired, however, it was included hy Tharp in his return to the assessor, and it was assessed to him. He also rented it and collected the rent in his own name. We will not stop now to deal with the explanation given of this circumstance. The explanation given is not altogether plausible, but it is by no means impossible. The most important corroborating fact in our judgment is the appearance of the deed itself. This deed was undoubtedly lost shortly after its delivery. There was no motive for its concealment at that time. Nor is it apparent that there was any pressing motive at that time for a fraudulent alteration of the deed. There was nothing to prevent a conveyance hy the husband to the wife. The question naturally arises in the mind whether this alteration was recently made and after this controversy had come into view. The judgment against Tharp upon which the execution sale was made was entered in 1907. The sheriff’s sale was had in April, 1909. And on the day of the sale plaintiff caused notice of her ownership to be served upon the defendants. In August of the sáme year she brought this action. Some 'months later her deed was found under circumstances free from suspicion. It was found accidentally in the folds of the “carpet seat” of an old rocking chair which had been discarded for years and which had been exposed to the weather. With this deed when so found was another instrument and both were folded together “double.” They were weather-stained. The trial court found that the' appearance of the instru — 82 — ment was quite conclusive that the erasure was made long ago, and could not have been made after its exposure to the weather and after its discovery. It appears, also, that the deed was folded in the usual way, and that the names of grantor and grantee were “briefed” in the usual form on the back of the folded deed. When the deed was lost, it was again folded “double” so that the upper end where the “briefing” was rested against the blank space at the lower end. The names .of grantor and grantee which were briefed upon the upper end were thereby impressed or “copied” upon the blank space below. This impression or “copy” shows the name “hi. Tharp.” The present appearance of the deed as described by the trial court in a written opinion filed is as follows: “The first initial letter whether ‘W.’ or ‘M.’ was erased in the body of the deed and in the briefing on the back, shortly after its execution. The erasure was done by someone who knew how to do this kind of work, and so perfectly done that it is now impossible to tell from the deed itself what the first initial really was. Tharp and wife both testify that the deed is now jiist as it was when it came into their hands. There is no evidence rebutting this. The deed seems to have been folded and laid away. The briefing on the back has been copied on the bottom of the back where it was folded against the top with the first initial missing. This is a circumstance tending to corroborate Tharp and his wife that the deed is now as when received by them. It is evident from the deed itself that there is no recent change in it, and not. a change made for the purpose of this suit.” The foregoing statement of the trial court is not challenged, nor is the original deed presented to our view. We deem the circumstance of great importance as strongly corroborative of the direct testimony of the plaintiff and her husband. In the light of this circumstance, we think the testimony of the plaintiff and her husband should be accepted to the effect that the erasure in question was made — 83 — before delivery. Such, fact being found, it controls the case, regardless of the subsequent conduct of the plaintiff’s husband in collecting the rent in his own name. This was the conclusion reached by the trial court. The decree entered below must therefore be affirmed.