Ames v. Brown

Cornell, J. The modern rule is well settled that an alteration of a deed or written instrument, even though in a material part, by a mere stranger, without the privity, [260] knowledge, or consent of the party interested, will not render it void. Waring v. Smyth, 2 Barb. Ch. 119, and note. In this case no privity existed between Spencer, the mortgagee, and S. C. Gale, who made the alteration for the sole purpose of conforming the mortgage to the intention of the parties, and to correct a mistake which he, as the scrivenei of the mortgagor, had committed in drawing it, and which he innocently supposed he had the right to do. 1 Greenl. Ev. § 189. That such alteration was never made by the procurement, consent, or knowledge of Spencer is fully established as a fact by the finding of the court. Hence what, in the absence of such finding, would be the presumption growing out of the relation of principal and agent between Spencer and Gale & Co., of which firm S. C. Gale was a member, is a matter of no importance. But the special character of the agency of Gale & Co. gave them no authority to tamper with the security of their principal, or to destroy it, much less could any such authority be claimed in favor of any individual member of the firm. Their custody of the paper, for a specific purpose, cannot be deemed such a possession by the principal as would charge him with any knowledge of, and presumed assent to, their unauthorized and illegal acts, and make him responsible for their consequences. U. S. v. Hatch, 1 Paine, (C. Ct.,) 336. It follows that S. C. Gale must be regarded as a stranger, whose unauthorized act in altering the mortgage in no way affected the legal or equitable rights of the mortgagee or his assignees. But for such alteration, it is not denied that the judgment of the court below, ordering a reformation and foreclosure of the mortgage, is fully sustained by its findings. Defendants seek no benefit or advantage by reason of the unauthorized alteration and void foreclosure, but simply ask that their equitable lien upon the premises be made effectual by a reformation of the mortgage to correspond with the actual agreement and intention of the original parties, and its foreclosure as so reformed. To deny this relief, and at the [261] same time destroy the equitable security, at the instance of the party who gave it, because her scrivener, in attempting to correct his own mistake, did what it was clearly her duty to do on request, and what a court would compel her to do in ease of refusal, would be grossly inequitable, and a most flagrant perversion of the principles of equity jurisprudence to purposes of wrong and injustice. Judgment affirmed.