Woods v. Hilderbrand

Bliss, Judge, delivered the opinion of the court. The plaintiff brings ejectment, and relies upon a sheriff’s deed. He purchased at the sale sundry parcels of land, including the one in controversy, and, after receiving the deed, altered, as is claimed by defendant, the description of one of these parcels, but not the one he seeks to recover in this action. This change in the deed the court held to be fatal, and decided that the whole deed was thereby vitiated, and refused to consider it in passing upon the plaintiff’s title. The defendant also was permitted to prove that the plaintiff, after receiving the deed, mortgaged the property to one Hinkle, and that the debt secured by the" mortgage was overdue; but Hinkle had not foreclosed or sought to take possession under the mortgage, and defendant does not claim under him. The court, however, held it to be an outstanding title of which the defendant cauld avail himself in this action. In both these positions the court committed manifest error. It is a mistake to suppose that an alteration in a deed of convey286 anee,.-after,delivery, operates to reconvey the» title to the-original grantor. . A total destruction of the instrument -will not have that effect,, but the title remains in the grantee, and he may bring ejectment upon it. The title passed by the deed"ife has performed its office, and. its continued, existence or-integrity is- not essential to the title, although a fraudulent and material' change may disable the holder from bringing an action upon its covenants. (1 Greenl, § 568 ; Lewis v. Payne, 8 Cow. 71; Jackson v. Gould, 7 Wend. 364; Herrick v. Malin, 22 Wend. 388; Alexander v. Hickox, 34. Mo. 496.) • Whether a deed thus altered may be used in evidence -of- the'real grant is,, perhaps, -not well settled. In Withers v. Atkinson, 1 Watts, 236, and in Chesley v. Frost, 1 N. H. 145, it is held that a fraudulent alteration .of a conveyance by the grantee, in a material matter, utterly destroys it; and'while the title thereby does not re-invest, the deed can not be,used by him for any purpose, either to sustain an action upon the covenants or as evidence of his title. But in Doe v. Hirst, 3 Stark, 60, and in Jackson v. Gould, 7 Wend. 364, an altered deed was allowed to be read in evidence to sustain the title created by it. We áre not, however,- called upon to give an opinion 'adverse to the doctrine of Withers v. Atkinson, supra; for in the case at bar the alteration, so far. as the land in controversy is concerned, can not be considered a material one. -The plaintiff purchased ;at slierifPs sale several distinct parcels, of land. ’ They were all sold separately,. and separate deeds might-have been executed. The descrip-tion of one of the parcels — from what motive does-'not appear — • was changed by the grantee. Without considering'what might be the effect of this changers to that parcel, we can not see how-it should affect the conveyance as to the others. As to them the alteration was immaterial, and the deed remains in full force,'and should-have been received as evidence .of the plaintiff’s title. '• The ruling of ..the court upon the second point contradicts the long and well-settled doctrine as to the illation’ of the mortgagor and mortgagee before entry or foreclosure. ’' “ The modern doctrine is well established, that a mortgage is but a security for the payment, of -the debt or. the discharge of the engagement for [287] which it was originally given; and until the mortgagee enters for brea&h of the conditions, and in many respects until final fore-closure of -the " mortgage, the mortgagor continues the owner of the estate, and has a right to lease, sell, and in every respect to deal with the mortgaged premises- as the owner, so long as-he is' permitted to remain-in possession.” (Kennett v. Plummer, 28 Mo. 145.) The case of Meyer v. Campbell, 12 Mo. 603, is relied upon as establishing the doctrine sustained by the court below, and such a position seems to be indicated by the-court, though the question is not directly decided. The mortgagee himself, in possession after forfeiture, might doubtless set up his own title against that of the mortgagor (McCormick v. Fitzsimmons, 39 Mo. 34), but, as against all the world besides, the mortgagor is the owner, and his title can not be defeated by showing that the property is pledged to a third person for the payment of a debt. (Hill, on Mortg. 162, § 15; Raynor v. Wilson, 6 Hill, 469; Collins v. Toney, 7 Johns. 278; Jackson v. Pratt, 10 id. 387; Den v. Dimon, 5 Halst., N. J., 156.) If it was the intention of the cburt in Meyer V. Campbell to 'hold a contrary-view,' it' is-not- clearly expressed-;'and with the clear statement of' the relation of the mortgagor and mortgagee in Kennett v. Plummer, and the'universal holding in other State's, we must unhesitatingly hold the doctrine in Missouri as well as elsewhere to be, that a defendant in ejectment can not set up a mortgage -with which he is not connected -ás an outstanding title. The fact that ejectment may be-brought in Missouri by the moft-gagee, while it will not lie in-New York, doe's not invalidate the New York authorities upon the present question; for only the mortgagee himself may avail himself of his right, and it is of no consequence, so far as strangers are concerned, whether "he have only the right to foreclose or' the right of ejectment as welL ' The judgment of the District and-Circuit Courts-are reversed and the cause remanded for a newtrial. Thé other judges concur.