Bank of Lauderdale v. Cole

Smith, C. J., delivered the opinion, of the court. (After stating the facts as above). The chancellor’s finding that these notes .had been altered was made on conflicting evidence, and therefore is not open for review here. The notes as originally executed appeared simply to have been given for value received; as altered, the consideration therefor appears to have been the conveyance of certain land therein described, thereby becoming evidence of appellants’ claim that they were secured by a vendor’s lien on the land, and the rule is that an alteration which enlarges the scope of an instrument as a means of evidence is material. Schmidt v. Quinzel, 55 N. J. Eq. 792, 38 Atl. 665; Craighead v. McLoney, 99 Pa. 211; Low v. Argrove, 30 Ga. 129; Kalteyer v. Mitchell, 110 S. W. 462; Richardson v. Fellner, 9 Okl. 513, 60 Pac. 270; Knit v. Williams, 10 East, 431, 103 Reprint, 839. On the evidence, if these alterations were in fact made, and the chancellor so found, they were manifestly made for the purpose of evidencing the existence of a vendor’s lien which in fact had been waived, and were therefore made with a fraudulent intent, from which it necessarily follows that appellants, Bank of Lauderdale and Ballard, [44] can recover neither on the note sued on by them nor on the original indebtedness for which it was given. 2 C. J. p. 182, section 17; 2 Daniel on Negotiable Instruments (5th Ed.) 431; Warder v. Willyard, 46 Minn. 531, 49 N. W. 300, 24 Am. St. Rep. 250; Wheelock v. Freeman, 13 Pick. (Mass.) 165, 23 Am. Dec. 674; Bank v. Dent, 102 Miss. 463, 59 So. 805. It is true that the alteration of these notes, in order to he availed of by appellees, 'must have been made with a fraudulent intent, and also, as pointed out by counsel for appellant, that appellees’ answer does not specifically charge that these notes were “fraudulently” altered, hut it does contain allegations which, if true, disclose that the alteration was made for the purpose of enabling the payees in the notes to establish a vendor’s lien upon the property sold by them to appellees in violation of the agreement made at the time of the sale, thereby sufficiently disclosing the fraudulent intent. Affirmed.