Note concerning the law of Erasures and Estoppels.
I. Erasures.—The question—What is the effect of an erasure, an interlineation, or alteration apparent in a material part of a deed above thirty years old, when offered in evidence?—has led to much discussion both among professional and general readers of this work, as well at home as abroad; and many communications upon the subject have been received by the author. Lord Widdrington at the trial, and subsequently he and the full court, held, in the case of Doe d. Titmouse v. Jolter, that such an erasure was fatal to the case of the party who relied on the instrument in which it was exhibited. In constructing this portion of the story, the author, aware of some difference of opinion on the subject among lawyers, relied upon the following passage in a work of great and long-established authority, (Buller's Nisi Prius, p. 255,) in which the law is thus laid down—"If there be any [material] blemish, by razure or interlineation, in a deed, it ought to be proved, though it were above thirty years old, by the witnesses if living, and if dead, by proving the handwriting of at least one of the witnesses, and also the hand of the party, in order to encounter the presumption arising from the blemishes in the deed." Such, also, is the law laid down in Lord Chief Baron Gilbert's Treatise on Evidence, (p. 89,) and the proposition appears adopted, and these two high authorities cited, in the last edition, (the ninth,) of that celebrated standard text-book, Phillips on Evidence, p. 205, published since the former edition of this work. There is an impression, however, that this strict rule would not now be acted upon; on the ground that the presumption resulting from a continued possession, in conformity with the effect of a deed with erasure or interlineation, is strong enough to overcome the presumption of forgery afforded by the alterations themselves. Still it is possible to foresee great danger arising out of the adoption of such a rule: for a man enjoying an estate in lands, less than one of fee simple, may alter the deed so as to give to himself that superior estate, and then, after a lapse of thirty years, produce the deed so altered, and thereby defeat the innocent party challenging his title to the property. Possibly it would now be submitted as a question for a jury to decide, whether the alteration had been made previously or subsequently to the delivery of the deed? for if previously, the deed remains valid and binding. A deed thirty years old is called "an ancient document," and is said to "prove itself"—i. e. to require no proof of its execution, provided it shall have been produced from a custody which may be reasonably and naturally explained, even though not the strictly proper legal custody.—See the late case of Doe d. Neale v. Sampler, 8 Adolphus and Ellis' Rep. 151; and Doe d. Wildgoose v. Pearce, 2 Moody and Robinson, 240. As to the point made by the Attorney-General, at the trial, that where the right is once vested—i. e. the instant after the execution of the deed—such execution creating a title to the land in question—that right and title cannot be affected by any subsequent alteration of the deed;—it has been affirmed to be good law in a recent solemn decision of the Court of Exchequer, and confirmed in a Court of Error.—See Davidson v. Cooper, 11 Meeson v. Welsley, 799-800. "The moment after the execution of the deed, it has become valueless," said Lord Abinger, "except as affording evidence of the fact that it had been executed." In this case, in which the author was engaged, (in 1843,) the whole doctrine of erasures was thoroughly canvassed; and it was decided, on error, that when an instrument, (whether under seal or not,) which is the foundation of a right sought to be enforced, is altered in a material part, even by a stranger, without the privity of the party affected by it, such alteration makes the instrument utterly void. The Scotch law respecting erasures is exceedingly stringent; and even goes farther than that laid down by Lord Widdrington.
II. Estoppel.—Both this doctrine, and that of erasures, as illustrated by this work, formed the subject of elaborate investigation in an article in the American Jurist for 1842, (vol. xxvii. pp. 50, et sec.) The question relating to estoppel, is thus stated there in abstract terms. "If the son and heir-apparent of a tenant in fee-simple, conveys the land thus held, and afterwards dies in his father's lifetime, is the heir of the father, who also makes his pedigree through the son, estopped by that son's conveyance?" The conclusion arrived at is, that, according to Lord Coke, if such conveyance had been with warranty, the heir would be bound, if assets descended to him from the son.[A] But statute 4 and 5 Anne, c. 16 § 22, makes void as against his heir all collateral warranties made by an ancestor who has no estate of inheritance, in possession; and the Act just passed, (1844—stat. 7 and 8 Vict. c. 76 § 5,) permitting the alienation of contingent interests, expressly declares that it shall not enable any heir to dispose of his expectancy.
[A] By "Warranty," is meant the clause with which deeds of feoffment formerly concluded, and by which the feoffor agreed that he and his heirs would "warrant, acquit, and forever defend the feoffee and his heirs against all persons." This old form has long been obsolete; and may be considered to have been, by two late statutes, abolished.
In this story an heir is represented as conveying away his expectancy; and the author has received an obliging communication on the subject, from one of the greatest conveyancers who ever lived—Mr. Preston—to the following effect. "The rule of law is—Qui non habet, ille non dat: nemo potest plus juris in alium transferre, quam ipse habet. Therefore a grant by an expectant heir, simpliciter, is void. But the doctrine of estoppels (a 'cunning learning,' says Lord Coke) affords exceptions to this general rule." A feoffment with warranty binds an heir, however, not by estoppel, but by rebutter, "in order to avoid circuity of action, which is not favored by the law."—(Co. Litt. 265 a.) He might be estopped by a lease for years, and by matter of record—or by fine and recovery, before those methods of assurance were abolished; but a conveyance by Lease and Release would not bind the heir, on the subsequent descent of the estate: for he had no right at all at the time of the release, made, but that once in the ancestor; after whose decease the heir may enter in to the land against his own release.—(Co. Litt. 265 a.) "The late vice-chancellor, Sir John Leach," says Mr. Preston, "once decided that a release did operate as an estoppel, in conformity with my argument before him; but Lord Lyndhurst on appeal, contrary to his own first impression, on Sir Edward Sugden's handing up to him my own Book on Conveyancing, as a contre projet to my attempt to support the vice-chancellor's decision, overruled that decision."
[CHAPTER V.]
Rank is very apt to attract and dazzle vulgar and feeble optics; and the belief that such is its effect upon mankind generally, is unspeakably gratifying to a vain and ignorant possessor of that rank. Of the truth of one part of this observation, take as an illustration the case of Tittlebat Titmouse; of the other, that of the Earl of Dreddlington. The former's dinner engagement with the latter, his august and awful kinsman, was an event of such magnitude as to absorb almost all his faculties in the contemplation of it, and also occasion him great anxiety in preparing for an effective appearance upon so signal an occasion. Mr. Gammon had repeatedly, during the interval, instructed his anxious pupil, if so he might be called, as to the manner in which he ought to behave. He was—Heaven save the mark, poor Titmouse!—to assume an air of mingled deference, self-possession, and firmness; not, on the one hand, to be overawed by the greatness with which he would be brought into contact, nor, on the other, unduly elated by a sense of his own suddenly acquired importance. He was, on the contrary, to steer evenly between the extremes of timorousness and temerity—to aim, at least, at that happy mean, so grateful to those able to appreciate the effort, and object, of those who had attained to it. Titmouse was to remember that, great as was the Earl of Dreddlington, he was yet but a man—related, too, by consanguinity, to him, the aforesaid Titmouse; who might, moreover, before many years should have elapsed, become himself Lord Drelincourt, and by consequence equally entitled, with the present possessor of that resplendent rank, to the homage of mankind. At the same time that the earl's advanced years gave him a natural claim to the reverence of his young kinsman—(whom his Lordship was about to introduce into the sublime regions of aristocracy, and also of political society)—Titmouse might extract a few ingredients of consolation from the reflection, that his income probably exceeded, by a third, that of the Earl of Dreddlington. This is the sum of Mr. Gammon's general instructions to his eager and excited pupil; but he also gave Titmouse many minor hints and suggestions. He was to drink very little wine—(whereat Titmouse demurred somewhat vehemently, and asked "How the d—l he was to get his steam up without it?")—and on no account to call for beer or porter, to which plebeian beverages, indeed, he might consider himself as having bid a long and last adieu;—to say occasionally, only, "my Lord" and "your Lordship," in addressing the earl—and "your Ladyship," in addressing Lady Cecilia;—and, above all, never to appear in a hurry, but to do and say whatever he had to do and say calmly; for that the nerves of aristocracy were very delicate, and could not bear a bustle, or the slightest display of energy or feeling. Then, as to his dress—Gammon, feeling himself treading on very doubtful ground, intimated merely that the essence of true fashion was simplicity—but here Titmouse grew fidgety, and his Mentor ceased.