"If a deed contains divers distinct and absolute covenants, if any of the covenants are altered by addition, interlineation, or rasure, this misfeasance ex post facto, avoids the whole deed, . . . for although they are several covenants, yet it is but one deed, If two are bound in a bond, and afterwards the seal of one of them is broken off, this misfeasance ex post facto avoids the whole deed against both." 19

§ 1882. Conveyance though altered vests title, but covenant must be valid when enforcement sought.

A distinction should be observed between a deed of conveyance and a bond or covenant obliging the maker to some future performance. If a conveyance is valid when delivered, the title to the property vests in the grantee, and no subsequent alteration 20 or loss 21 of the deed can affect the title of the grantee, though for want of evidence he may find difficulty in enforcing his title.21a A bond or covenant for future perfor

mance, however, must be valid when the obligee seeks to enforce it, and the rules in Pigot's case are applicable. 22

§ 1883. Conveyances of corporeal and incorporeal hereditaments.

This distinction between conveyances and obligations, while clear on principle, was not that which the early English law adopted. As to conveyances of corporeal hereditaments where there was a transfer of possession, it was early held that a subsequent alteration could not divest a title which had passed by the deed, 23 for it was said that the property lay in livery and the deed was but evidence of the transfer. But in the case of incorporeal hereditaments, which lie in grant, it was otherwise; the title was regarded as continuously dependent on the deed, and a subsequent alteration divested a title previously passing by the deed. 24

145; Lewis v. Payn, 8 Cow. 71, 18 Am. Dec. 427; Bliss v. McIntyre, 18 Vt. 466.

22 Compare with Argoll v. Cheney, supra, n. 20; Bayly v. Garford, March, 125, where the seal of two obligors had been eaten by mice and rats, and this was thought to discharge a third person jointly bound with them, though his seal was uninjured. See also Michell's Case, Owen, 8; Nichols v. Haywood, Dyer, 59a; Seaton v. Henson, 2 Lev. 220; S. C., 2 Show. 28. The numerous modern decisions are cited passim infra.

23 Bro. Ab. "Lease," pl. 16; Moore v. Waldron, 1 Rolle, 188; Argoll v. Cheney, Palm. 402; Miller v. Manwarning, Cro. Car. 397, 399; Woodward v. Aston, 1 Vent. 296; Nelthorpe v. Dorrington, 2 Lev. 113; Lady Hudson's Case cited in 2 Vern. 476, and Ch. Prec. 235; Doe v. Hirst, 3 Stark. 60.

24 Miller v. Manwarning, Cro. Car. 397, 399; Moor v. Salter, 3 Bulstr. 79. In Miller v. Manwarning, the report reads: "And Jones and Berkley, Justices, . . . took a difference when

an estate loseth his essence by a deed, viz., where it may not have an essence without a deed, as a lease by a corporation, or of tithes, or grant of a rentcharge, or such like, if the deed be rased after delivery, it determines the estate and makes it void, but when the estate may have essence without a deed, there although it be created by a deed, and the deed is after rased by the party himself or a stranger, that shall not destroy the estate although it destroys the deed." The court, therefore, held rasure in a lease did not avoid the lessee's estate. Croke's opinion was, however, that the rasure destroyed the deed and also the estate of the lessee, as by a surrender.

So in Gilbert on Evidence (1st ed., p. 84, 6th ed., p. 75), "There is a difference to be taken between things that lie in livery, and things that lie in grant, for things that lie in livery may be pleaded without deed, but for a thing that lies in grant regularly a deed must be shown." See also ibid., 1st ed., p. 109, 6th ed., p. 95.

By the present English law, however, a title once vested whether to corporeal or incorporeal property cannot be divested, 25 and probably the distinction of the earlier law would not now be followed in the United States, 26

§ 1884. Substantive law and evidence equitable relief.

The substantive law is here complicated with a question of evidence. The original reason that a deed or sealed contract was discharged by alteration applied equally to the loss or accidental destruction of such an instrument. The instrument was itself the obligation, not merely evidence of it, and if the writing ceased to exist in its original form the obligation necessarily ceased. But an obvious consequence of alteration, loss, or destruction was a difficulty of proving that an instrument of a particular character had been made. In case of accidental loss 27 or destruction, 28 courts of equity early gave relief, and later courts of law made equitable relief unnecessary

In Woodward v. Aston, 1 Vent. 296, 297 (1677), "The Court said in this case that a rent or other grant was not lost by the destruction of the deed, as a bond or chose en action was. (Quare, if the party himself cancel it)."

The Statute of Frauds introduced a new element into the case, since it made impossible the transfer or surrender (except by operation of law), of an estate without a writing. Consequently even voluntary cancellation of a lease granting an estate within the statute could not operate as a surrender. Magennis v. McCulloch, Gilb. Eq. 235; Leech v. Leech, 2 Ch. Rep. 100; Roe v. York, 6 East, 86.

25 The old distinction was criticised by Eyre, C. J., in Bolton v. The Bishop of Carlisle, 2 H. Bl. 259, 263: "I hold clearly that the cancelling a deed will not divest property, which has once vested by transmutation of possession, and I would go farther and say that the law is the same with respect to things which lie in grant.

In pleading a grant the allegation is that the party at such time 'did grant,' but if by accident the deed be lost, there are authorities enough to shew that other proof may be admitted. The question in that case is, Whether the party did grant? To prove this the best evidence must be produced, which is the deed; but if that be destroyed, other evidence may be received to shew that the thing was once granted."

26 It was stated as law, however, in Lewis v. Payn, 8 Cow. 71, 18 Am. Dec. 427.

"Griffin v. Boynton, 8 Nelson, 82; Collet v. Jaques, 1 Eq. Cas. Ag. 32, pl. 2; Lightbone v. Weeden, 1 Eq. Cas. Ab. 24, pl. 7. So in the case of a lost bill of exchange. Tercese v. Geray, Finch, 301.

28 Brown v. Savage, Finch, 184; Bennett v. Ingoldsby, Finch, 262; Brookbank v. Brookbank, 1 Eq. Cas. Ab. 168, pl. 7; Wilcox v. Sturt, 1 Vern. 78; Sanson v. Rumsey, 2 Vern. 561, and note.

by accepting secondary evidence of the deed and enforcing its provisions. 29 But alteration was regarded as due, if not to wrong doing, at least to laches of the obligee or grantee, and equity gave him no relief.3

30

If a court of law also would not receive in evidence the altered deed or secondary proof of its contents, the consequence would be to deprive any grantee or obligee of all legal rights in any case where the burden of proof rested upon him to show such rights and they could be shown only by proof of the deed. Even if the deed vested an estate in the grantee prior to the alteration, no one would be bound to respect the title if the only legal evidence of it were destroyed. The case is analogous to that of the voluntary destruction of a conveyance by the grantee. Though this is not a reconveyance of the estate, the effect is similar if the grantee cannot prove his title nor show that the grantor's title has been divested. The rule of evidence is often broadly enough stated to lead to these results. In Greenleaf on Evidence it is said that if a writing has been destroyed by the party wishing to prove its contents no secondary evidence will be received, unless the party can show that the destruction was not for the purpose of suppressing evidence or any fraudulent purpose.31 No English cases, however, are cited which support so severe a rule. On the contrary, the English courts have held that not only in the case of alteration by a stranger may the altered deed be given in evidence as proof that a title passed, 32 but that this may be done even where the

29 See 1 Greenleaf, Ev., § 563, b; Leake, Cont. (4th ed.) 580. In the case of a negotiable instrument relief could not be given so easily. The possibility of the instrument being found and transferred to an innocent purchaser must be guarded against, so that resort to equity which would give relief only on condition of a bond of indemnity being given remained necessary for some time longer. See supra, § 1600. But this was not required for non-negotiable instruments. Wain v. Bailey, 10 A. & E. 616. Now relief even on negotiable instruments is generally allowed. Ibid.

30 Sel. C. Chanc. temp. King, 24. In Arrison v. Harmstead, 2 Barr, 191, 193, counsel argued that equity would reform an altered deed in favor of a purchaser, but Gibson, C. J., interrupted, "The deed is dead and equity cannot put life into it." This was cited with approval in Wallace v. Harmstad, 44 Pa. 492, 494. See also Marcy v. Dunlap, 5 Lans. 365.

31 1 Greenleaf, Ev. (16th ed.), § 563, b, citing numerous decisions.

32 Doe v. Hirst, 3 Stark. 60; Hutchins v. Scott, 2 M. & W. 809; West v. Stewart, 14 M. & W. 47. See also Woods v. Hilderbrand, 46

33

alteration was chargeable to the party offering the deed, and similarly that the cancellation of a conveyance does not prevent proof by one consenting to the cancellation that such a conveyance was made.34 The Supreme Court of Alabama has followed the English decisions.

§ 1885. American rule governing alteration of a deed by a stranger.

In the United States alteration by a stranger does not generally avoid a deed,34 so that such a deed can of course be given in evidence, but it has been held generally, in accordance with the rule of evidence stated above, that if a material alteration is fraudulently made the altered deed cannot thereafter be given in evidence.3

Whether this in effect by depriving the grantee of an enforceable right transfers the title back to the grantor depends on whether the rule is aimed solely against the party guilty of the fraudulent alteration and his heirs or donees, or whether even a bona fide purchaser from him would be similarly debarred. It may be urged that if a purchaser is protected the fraudulent person is in effect given the benefit of his title by being allowed to sell it, though he cannot directly enforce it. Accordingly the Pennsylvania Supreme Court has held that a bona fide purchaser can no more assert a title than his wrongdoing

Mo. 284; Jackson v. Gould, 7 Wend. 364.

33 Agricultural Ins. Co. v. Fitzgerald, 16 Q. B. 432.

34 Ward v. Lumley, 5 H. & N. 656. See also S. C., 5 H. & N. 87; Harris v. Owen, West Ch. 527; S. C., sub nom. Harrison v. Owen, 1 Atk. 520.

34 Alabama Land Co. v. Thompson, 104 Ala. 570, 16 So. 440, 53 Am. St. Rep. 80; Burgess v. Blake, 128 Ala. 105, 28 So. 963, 86 Am. St. Rep. 78; Harper v. Reaves, 132 Ala. 625, 32 So. 721. See also Woods v. Hilderbrand, 46 Mo. 284, 2 Am. Rep. 513; Holladay-Klotz Co. v. T. J. Moss Co., 89 Mo. App. 556.

34a See infra, § 1892.

35 Chesley v. Frost, 1 N. H. 145;

Babb v. Clemson, 10 S. & R. 419, 13 Am. Dec. 684; Withers v. Atkinson, 1 Watts, 236; Bliss v. McIntyre, 18 Vt. 466, 46 Am. Dec. 165; Newell v. Mayberry, 3 Leigh, 250, 23 Am. Dec. 261; Batchelder v. White, 80 Va. 103.

So of a written contract. Hayes v. Wagner, 89 Ill. App. 390. The numerous decisions holding that a writing with an apparent alteration cannot be received in evidence unless the alteration is explained necessarily involve the same point. Decisions which allow such documents to be received in evidence on proof of the signature, leaving the question of alteration to be decided as an issue in the case, perhaps have a contrary implication. See infra, §§ 1916, 1917.