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out the privity of the party claiming under it, renders the deed void, the supreme court of New York would not assent to it in Jackson v. Malen, 15 Johns. 297; and expressly dissented from it in Rees v. Overbaugh, 6 Cow. 749; considering that as according to Read v. Brookman, 3 T. R. 151, a deed may be rendered available to a party notwithstanding its total destruction, there is no principle upon which he can be deprived of the benefit of it when it has suffered a partial injury, either from accident or the act of a stranger over which he had no control.
A like doctrine is maintained in Connecticut. Nichols v. Johnson, 10 Conn. 198; and in Pennsylvania. The supreme court of this state considers that if the name or seal of an obligor be cut or torn off by another obligor or by a stranger without the obligee's consent, the bond is not thereby avoided. Barrington 8-c. v. Bank of Washington, 14 S. & R. 313; Rhoads v. Frederick, 8 Watts 448.
Moreover, in the supreme court of the United States the opinion was expressed by Thompson, J. that an alteration by a stranger, without the knowledge or consent of the obligee, would not affect the validity of the instrument. U. S. v. Linn fc. 1 How. 110. That opinion preceded the decision in Davidson v. Cooper, 11 M. & W. 798, and is not to be reconciled with this decision. In delivering the judgment of the court of excheqner, Lord Abinger says, "there is no doubt but that in the case of a deed any material alteration, whether made by the party holding it or by a stranger, renders the instrument altogether void from the time when such alteration is made." After observing that this was so resolved in Pigot's case, 11 Rep. 27, he adds, that though it was contended in argument that the rule had been relaxed in modern times, the court was not aware of any authority for such a proposition when the altered deed is relied on as the foundation of a right sought to be enforced. He proceeds to state how it would be in the case of an ejectment to recover lands, and then adds, “But if the party is not proceeding by ejectment to recover the land conveyed, but is suing the grantor under his covenants for title or other covenants contained in the release, then the alteration of the deed in any material point after its execution, whether made by the party or by a stranger, would certainly defeat the right of the party suing to recover."
This judgment was affirmed in the exchequer chamber; Lord Denman saying the party who may suffer has no right to complain, since there cannot be any alteration except through fraud or laches on his part. To say that Pigot's case has been overruled (he observes) is a mistake: on the contrary it has been extended; the authorities establishing, as common sense requires that the alteration of an unsealed paper will vitiate it. Davidson v. Cooper, 13 M. & W. 352.
In the United States there was a decision on the same principle in New Jersey. Den v. Wright fc. 2 Halstead 177.
6. Bond not avoided by an immaterial alteration made by a
stranger without obligee's privity. If a stranger, without the obligee's privity, alters the deed in a point not material, it shall not avoid the deed. So it was adjudged in Pigot's case, 11 Rep. 27a; U. S. v. Hatch foc. Paine 342; State v. Miller, 3 Gill 339; and Waugh fo wife v. Bussell, 5 Taunt. 707; 1 Eng. Com. Law Rep. 241. Au alteration leaving the sense what it was before is deemed immaterial. Thus, where a bond was conditioned to pay £ 100 by six equal payments, that is to say, £ 16. 13. 4. each year, with interest on the same, the first payment to be made on the 3d of October 1812, and the same sum annually on the 3d of October in each year with interest until the full sun of " one
pounds” shall be paid, it was considered that the addition in this part of the bond of the word “hundred” before pounds supplied nothing but what could be understood before it was inserted, and was immaterial, and therefore did not avoid the bond. Waugh go wife v. Bussell, 5 Taunt. 707 ; 1 Eng. Com. Law Rep. 341.
And perhaps the alteration might, as regards the obligor, be deemed immaterial where the amount is reduced from a larger to a smaller sum, as from $ 400 to $ 323. A bond was adjudged not to be vitiated by such an alteration, where, after the surety had signed it, the principal with whom he had entrusted it, as his agent, made the alteration before delivering it to the obligee. Ogle v. Graham, 2 Pen. & Watis 132.
7. Whether adding the name of a subscribing witness as to
a party who did not acknowledge the instrument before him will vitiate the bond.
The circumstances under which one may lawfully subscribe his name as an attesting witness, were considered in Parke v. Mears, 2 Bos. & Pul. 217; Wright &c. v. Wakeford, 4 Taunt. 214; McCraw v. Gentry, 3 Camp. 232; Loyd v. Frichfield, 2 C. & P. 325; 2 Eng. Com. Law Rep. 151; and Smith v. Dunham, 8 Pick. 246. All will agree that persons who were not present when an instrument was acknowledged or delivered should not subscribe their names to it as attesting witnesses. “It is,” says Duncan, J., "a falsification of a fact material to the parties : if the witnesses die or remove out of the state proof of their hand-writing will establish the deed ; it may respect lands and the grantee lie by until they are dead and then come out with his conveyance and proof of their hand-writing is proof of the delivery.” Marshall v. Gougler, 10 S. & R. 168. The supreme court of Pennsylvania decided in this case that if the obligee caused the persons who subscribed as witnesses to put their names to the instrument without the consent and in the absence of the obligors, this would avoid the instrument. The party it said shall not take his chance of advantage from the falsification, and when that is detected, resort to another mode of proof and recover on the original instrument. There was in this case an assignment of the bond ; the court was of opinion that if it appeared that the witnesses intended to put their names to the assignment to authenticate it, and by mistake put it to the bond, the bond would not then be void.
This case was not before the supreme court of North Carolina, at the time of its decision in Blackwell's adm'r v. Layne, 3 Dev. & Bat. 116, in which there having been placed on the paper the name of a person as a subscribing witness, as it seemed to the court not at the request or in the presence of the defendant, the court considered this not such an addition or alteration of the bond as would render it void.
The rule of Marshall v. Gougler has been recognized in Pennsylvania in subsequent cases. Foust v. Renno, 8 Barr 378; Henning v. Werkheiser, Id. 518; and Fritz v. Commissioners, 5 Harris 135. In one of these cases (Henning v. Werkheiser) there were to the instrument the names of two subscribing witnesses, each of whom proved that he wrote his name at the request of the plaintiff in the absence of the defendant. The court held the instrument void; it considered that the plaintiff having called the subscribing witnesses without success was not at liberty, as in the case of an unexploded deed, to give evidence aliunde of the execution of what had ceased by his misconduct to be a deed at all.
The doctrine has been considered by the supreme court of Massachusetts. This court holds 1, that if the obligee of an unattested bond, after the execution and delivery thereof, shall, without the knowledge and assent of the obligor, fraudulently and with a view to gain some improper advantage thereby, procure a person who was not present at the execution of the bond, to sign his name thereto as an attesting witness, such act will avoid the bond and discharge the obligor from all lia
bility on the same ; 2, that the act of the obligee in procuring the signature of one as a witness who was not present at its execution and not duly authorized to attest it, will, if unexplained, be prima facie sufficient to authorize a jury to infer the fraudulent intent; but that it is competent for such obligee to rebut such inference; and if the act be shiewn to have been done without any fraudulent purpose, the bond will not be avoided by such alteration. Adams &c. v. Frye, 3 Metcalf 108.
8. Whether bond is vitiated by expunging a credit on it.
In North Carolina it was contended that if a credit be entered on a bond and be fraudulently expunged, the bond itself is destroyed; the argument assuming that the entry of the credit becomes part of the bond so that its obliteration is a destruction of the whole instrument. This argument did not prevail; the court regarding the credit not as part of the deed but only as evidence of a payment on it, like a receipt. Simms v. Paschall, 5 Iredell 276.
ON A SEALED INSTRUMENT, THOUGH WITHOUT CONSIDERATION,
THERE MAY BE A RIGHT OF ACTION WHEN NO ILLEGALITY
1. Bond without consideration valid.
For a covenant under seal no consideration is necessary.
a 16 M. & W.353. Such is the rule of the common law. Sometimes we see it laid down that “the seal imports a consideration as much as if it was expressed in so many words.” This is the language of Vanness, J., in Livingston v. Tremper, 4 Johns. 417. But the expression is thought not to be entirely accurate. No consideration being necessary to give validity to a deed, the law does not from the fact of execution make any inference one way or the other in reference to a consideration. Walker v. Walker, 13 Iredell 335.
Whilst a parol executory gift, or promise to give, may not be binding, ihe same promise, if evidenced by a sealed instrument, may be as binding as if founded on a valuable conside
ration. 10 Grat. 331. A voluntary bond for money, executed to a stranger, and professing on its face to be without consideration, and for mere friendship, is binding. 13 Iredell 336.
If a man who has seduced a woman shall endeavour in some degree to make her reparation, by giving her a bond for the payment of money, such bond may be enforced. Annandale v. Harris, 2 P. Wms. 432; 1 Brown's Par. Cas. 250 (Tomlin's edi.); 2 El. & Black. 123; 75 Eng. Com. Law Rep. 125. Though a bond be with a condition, reciting that it is " in consideration of cohabitation had” with the obligee, an action may nevertheless be maintained upon it. Turner v. Vaughan, 2 Wils. 339; where Bathurst, J., cites Exodus, c. 22. v. 16, and Deuteronomy, c. 22, v. 28, 29. Nor will it be a valid ground of defence to the action that the obligor was at the time of the cohabitation with the obligee, married to another woman, if the illicit connection with the obligee was determined before or at the time of giving the bond. Nye v. Moseley, 6 Barn. & Cress. 133; 13 Eng. Com. Law Rep. 119.
These cases strikingly indicate the great effect of a seal. However strong in any of them may have been the precedent moral obligation, it would not be a consideration sufficient to sustain an action on a promise by words, or in a writing not under seal. Beaumont v. Reeve, 8 Adol. & El., N. S. 483; 55 Eng. Com. Law Rep. 483. Past cohabitation and previous seduction the law treats as no considerations at all. As, however, a bond or other instrument under seal is good without any consideration, so a bond for maintenance, founded upon past cohabitation, or previous seduction, is good. 3 El. & Black. 650; 77 Eng. Com. Law Rep. 650.
2. Distinction between a bond without consideration and a
bond on illegal consideration ; the latter void.
A seal does not prevent a contract from being impeached in a court of common law, for the illegality of the consideration. The distinction is between a bond given without consideration and a bond given upon an illegal consideration ; one given to carry into effect an illegal object, or in pursuance of an illegal contract. A defendant, though he is not at liberty to shew that a bond executed by him is without consideration, may nevertheless prove that the consideration upon which it was given is illegal, as being immoral or contrary to public policy. Martin f'c. v. Amos, 13 Iredell 201.
An action will not lie to enforce an illegal agreement, nor to enforce a bond or other instrument given in pursuance of the illegal agreement. It will not lie on a bond given by a