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thing farther should be done ; and going from the face of the paper to the evidence aliunde, it was shewn that it was not intended to be the deed of the defendants till executed by the other parties named and the counterpart delivered in exchange. Chandler foc. v. Temple 8 c. 4 Cush. 287.
WHAT IS DEEMED PART OF THE INSTRUMENT ; HOW IT IS AF
FECTED BY AN ALTERATION OR ADDITION.
1. Effect of an endorsement on the instrument.
As when a bond is given there is often annexed to it a condition that if before such a day the obligor pay a specified sum, then the bond shall be void, so there may be an endorsement on a bond, or other sealed instrument, modifying the condition of the bond, or a covenant in the deed.
The endorsement made on the instrument before or at the time of its sealing and delivery, is considered as explanatory of the intention of the parties respecting the operation of the condition or covenant. Broke" v. Smith, Moor 679; 1 Bac. Abr. Condition, C., p. 634; Burgh v. Preston, 8 T. R. 483; Gordon v. Frazier foc. 2 Wash. 130; Stone v. Hansbrough, 5 Leigh 422; Smith's ex'or v. Spiller, 10 Grat. 318; Lyburn v. Warrington, 1 Starkie 162; 2 Eng. Com. Law Rep. 338. And in an action on the instrument, a breach may be assigned on the endorsement. S. C., 1 Starkie 162.
In the case of an arbitration bond with a condition limiting the time for the arbitrator to make his award, the time may afterwards be enlarged by consent, so as to sustain an award made within the enlarged time. In an early case in Virginia (1791), where the reference was of a suit in equity, and the enlargement was by an endorsement signed by the parties, a court of equity considered this endorsement as incorporated with and forming part of the condition, so as to constitute one entire agreement; and though there was a period of more than a year between the date of the bond and the date of the endorsement, the court let the endorsement be taken by relation to the date of the bond, so as to bring it within the original rule. Shermer v. Beale, 1 Wash. 11.
There has been more difficulty at law. Brown v. Goodman, 3 T. R. 592, note; Jenkins v. Law, 8 T.R. 87. With respect to the last of these cases, the court of king's bench came to the conclusion that it could not be supported. In its opinion the agreement to enlarge the time for making the award is to be understood as, by reference, virtually incorporating in itself all the antecedent agreements between the parties relative to that subject, as if the same had been formally set forth and repeated therein, and of course incorporating amongst the rest an agreement contained in the condition of the bond, that the submission to arbitration should be made a rule of court; and that with reference to the enlarged time, instead of the time originally specified in the condition of the bond. Evans v. Thompson, 5 East 189. In this case the proceeding was under the 9 and 10 W. 3, c. 15; an attachment was awarded for contemning the rule of court.
There was still a question in respect to an action at law on the bond. There had been a decision against such action where it did not appear that the consent to extend the time was by deed. Brown v. Goodman. And that decision was followed in New York, though it appeared that the parties by an agreement under their hands and seals, endorsed on the bond, had enlarged the time, and the award was made within such enlarged time. Freeman v. Adams, 9 Johns. 115.
The authorities establishing most clearly that deeds or defeasances may be altered by subsequent instruments of the like or as high a nature, (Co. Lit. 237a ; Shep. Touch. 398; Com. Dig., tit. Defeasance, B.; Moore 573; Hodges v. Smith, Cro. Eliz. 623, the question in such a case is whether the parties have by the second deed merely varied the terms of the condition of defeasance, or whether they have substituted the second deed in lieu of the bond, as a new and independent agreement of reference. The court of king's bench considers in such a case that the legal effect of the second deed is to continue the bond in force, subject to a defeasance for the performance of an award within the extended time, and consequently that an action is maintainable on the bond. Craig v. Talbot, 2 Barn. & Cress. 179; 9 Eng. Com. Law Rep. 56.
A like doctrine is maintained in South Carolina, Penman v. Gardner, 1 Brevard 498; New Hampshire, Brown v. Copp, 5 N. H. 346; and Virginia, Price v. Kyle, 9 Grat. 247. For whether (as in Craig v. Talbot,) we regard the endorsement as drawing to it the original condition and making a new defeasance, or (as in Shermer v. Beale,) by the fiction of relation treat the endorsement as incorporated into the condition, in either case, the original condition and the endorsement, are modified the one by the other, and read as one entire agreement; and the bond stands as a security for its performance. Daniel, J., 9 Grat. 250.
It may be, however, that consent to enlarge the time, when not by deed, would not continue the effect of the preceding deed, and consequently would not suffice to give a remedy upon the bond, although it might leave the party a remedy for the breach of the parol contract. Bayley, J., 2 Barn. & Cress. 179; 9 Eng. Com. Law Rep. 57, 8. For in England it is still recognized as an established rule that where an act is required by deed to be done against a certain time, you cannot shew that the period has been extended, except by some instrument also under seal. Tindal, C. J., in Gwynne v. Davy fec. 1 Man. & Grang. 573; 39 Eng. Com. Law Rep. 690. "No rule of law,” says Bosanquet, J., “is more fully established than this, that a contract under seal cannot be varied by a parol contract." West v. Blakeway, 2 Man. & Grang. 752; 40 Eng. Com. Law Rep. 752.
2. How far an instrument may be altered by consent.
Consent cannot authorize an alteration in a deed which has been acknowledged before a justice or other officer and by him certified for record. Moore &c. v. Beckham 8c. 4 Binn. 1.
In a case wherein there has been no such acknowledgment before a justice or officer, if the alteration be explained to the party sought to be charged in the instrument, and he assents to the alteration, re-executes the instrument and then recognizes its validity, he will be precluded from afterwards objecting to the alteration. Coke v. Brummell &'c. 8 Taunt. 439; 4 Eng. Com. Law Rep. 157.
So far an alteration in a sealed instrument, by consent, when the proof of that consent was merely by parol, has been sanctioned by the English courts, within very narrow limits.
Notwithstanding what is said in 2 Roll's Abr. 29, and in Bull. N. P. 267, there may be cases in which blanks left in an obligation would be allowed to be filled up afterwards by consent of the parties. Hudson v. Revett, 5 Bingh. 368; 15 Eng. Com. Law Rep. 472. With such consent a blank was filled in Markham v. Gonaston, Cro. Eliz. 626, Moor 547 ; and an obligor was added in Zouch v. Clay, 1 Ventr. 185; 2 Keble 872, 881 ; 2 Lev. 85; cases in which Marshall, C. J., has said the alteration was in the words, not in the obligation of the instrument; he understands the assent to have been to the specific alteration and to be an assent not impliedly but expressly given. U. S. v. Nelson foc. 2 Brock. 71.
case of Matson v. Booth, 5 M. & S. 223, was considered to be brought within the authority of Zouch v. Clay.
In the United States there have been cases of an alteration or addition by consent. Woolley v. Constant, 4 Johns. 59; Camden Bank v. Hall 8.c. 2 Green's (New Jersey) Rep. 583. The erasure was with the consent and in the presence of all the parties in Penny v. Corwithe, 18 Johns. 501. The court in this case said it is competent to the parties interested to consent to an alteration in a deed after it is executed, and then the deed takes effect as a new execution of it.
Mr. Justice Story considers it “clear at the common law that an alteration or addition in a deed, as by adding a new obligor, or an erasure in a deed, as by striking out an old obligor,
a if done with the consent and concurrence of all the parties to the deed, does not avoid it. And this principle equally applies whether the alteration or erasure be made in pursuance of an agreement or consent prior or subsequent to the deed ; and the cases in the books in which erasures, interlineations and alterations in deeds have been held to avoid them, will be found on examination to have been cases in which no such consent had been given.” Speake fc. v. U. S. 9 Cranch 37. Here, says C. J. Marshall, the pleadings presented the case of an express authority to make the alteration, and the only questions were, whether this express authority could avail the obligee, and whether it could be given by parol ; the case has settled these questions but it goes no farther. 2 Brock. 74.
When in Virginia, to prove that an alteration of a deed if assented to by the obligee would not vitiate it, Shep. Touch. 68; 11 Rep. 27; Com. Dig. 294 ; 4 Johns. 54; 18 Johns. 449, and 9 Cranch 28, were referred to, Carr, J. said, "I have examined these cases. Some of them say that the alteration, if made by the obligor will not annul the bond ; others if made by his consent. But all contemplate a case of consent given prior to or at the time of the alteration made ; and it seems to be considered as a re-execution or re-acknowledgment of the deed. Cleaton v. Chambliss, 6 Rand. 92.
3. Distinction between alteration of a bond which is several
and a bond which is joint or joint and several.
Although what discharges one of the obligors in a joint bond or a joint and several bond may discharge them all, Seaton v. Henson, 2 Show. 29; Rittenhouse v. Levering, 6 W. & S. 198; Mason v. Bradley, 11 M. & W. 590; yet it is otherwise when the bond is a several, and not a joint and sevral bond. Collins fc. v. Prosser 8c. 1 Barn. & Cress. 682; 3 Dow. & Ry. 112; 8 Eng. Com. Law Rep. 183; 16 Id. 146. Covenants which are several are as several deeds written on one and the same piece of parchment or paper : if the seal of one of those whose covenants are several be taken from the deed, it will avoid the deed only against him. Mathewson's case. 5 Rep. 23a ; Roll's Abr. 30; Bull. N. P. 172.
4. Effect of alteration of bond by obligee.
An alteration in what might be supposed an immaterial point, may, when made by the obligee himself, without the privity of the obligor, sometimes render the instrument void. Pin got's case, 11 Rep. 27a ; Shep. Touch. 69; 15 Johns. 297 ; Lewis v. Payn, 8 Cow. 73; Moore v. Bickham, 4 Binn. 1; 10 S. & R. 168; Johnson v. Bank U. S. 2 B. Monroe 311. A change of date, or even the most trivial change made by the obligee, it is said, will support the plea of non est factum. Carr, J. in Cleaton v. Chambliss, 6 Rand. 96.
And however this be, certain it is that ever since Pigot's case it has been the settled doctrine of the common law that when a deed is altered in a material point by the plaintiff, be it interlineation, addition, rasing or by drawing a pen through a line or through the midst of any material word, the deed thereby becomes void, unless it appear that the party against whom action is brought on the deed gave his express assent to such alteration. 11 Rep. 27a; Weeks v. Maillerdet, 14 East 568. This rule has been often recognized in the United States. O'Neale v. Long, 4 Cranch 60; Steele's lessee v. Spencer fc. 1 Peters 560; Mills v. Starke, 2 Bailey 359; Barrington fic. v. Bank of Washington, 14 S. & R. 423; Chesley v. Frost, 1 New Hamp. 148; Johnson v. Bank U. S. 2 B. Monroe 311; Miller v. Stewart, 9 Wheat. 708; Arrison v. Harmstead, 2 Barr 194; Wallace v. Harmstad, 3 Id. 467.
The principle is, that a party who has the custody of an instrument made for his benefit is bound to preserve it in its original state. It is, says Lord Denman, highly important for preserving the purity of legal instruments that this principle should be borne in mind and the rule adhered to. Davidson v. Cooper, 13 M. & W. 352.
5. Whether bond will be avoided by a material alteration
made by a stranger, without the obligee's privity.
With respect to the opinion expressed in Pigot's case, 11 Rep. 27a, that a material alteration, made by a stranger, with