Irvin v. Sea Ins. Co.

of itself falsified the representation, and nullified the policy. The cause was argued in this court by

D. Lord, jun., for the plaintiff in error.

A. G. Rogers, for the defendants in error.

After advisement, the following opinion was delivered :By the CHANCELLOR. The objections to the charge of the judge as to the seaworthiness of the vessel, and as to the alleged misrepresentation as to its character or capacity to sustain the ordinary perils of the sea, were very properly abandoned by the counsel for the defendants in error as wholly untenable. The only question for consideration, therefore, is whether there was such a misrepresentation by the assured in relation to the character of his vessel as a temperance ship, as to deprive him of the benefit of his insurance; or rather whether the judge who tried the cause erred in the instructions which he gave to the jury on that subject. Upon this question I think the learned judge who delivered the opinion of the supreme court has, in the discharge of the arduous duties which are imposed upon the members of that court, entirely misapprehended a part of the testimony in the case, if he has not overlooked the distinction which exists between a representation and a warranty.

The representation was, that the master of the vessel was a careful and steady man, and that he had good officers and a good crew, and that no spirits were allowed on board. This, in the absence of any suspicion that the master or crew were so intemperate that they would be tempted to broach casks of liquor which were on board the ship, without any intention of having them used, is a simple representation that the vessel is intended to sustain the character of a temperance ship. In other words, that no ardent spirits were allowed on board for the use of the officers or crew during the voyage, or while laying in the port of lading or of discharge; that is, during the risk which the underwriters were asked to assume; and I doubt whether a more extended meaning should be given to these words, even in

Irving v. Sea Ins. Co.

a technical warranty. See Whitehead v. Price, 1 Gale's R. 151. 2 Cr. Mees. & Rosc. 447, S. C. But if the learned judge was right in supposing that previous to the underwriting of this policy, a strong suspicion existed on the part of the underwriters, that the master of the vessel was an intemperate man, so that he would be likely to get intoxicated if any ardent spirits were placed within his reach or under his control; and that to guard against the risk of such an occurrence they required from the owner of the vessel an assurance that no ardent spirits would be allowed to be carried in the vessel during the voyage, a very different case would have been presented; especially if the two kegs of liquor were taken on board by the master with the knowledge or assent of the assured, or, if the representation had been put in the form of a warranty. In such a case, proof that the liquor was merely transported in the ship from one port to the other, for the purpose of securing the benefit of the draw back as a perquisite of the master of the vessel, and that they were placed under the king's seal for that purpose, would not excuse the assured, or enable him to recover on his policy.

Upon a careful examination of the testimony, however, it will be seen that no suspicion existed as to the intemperance of the master until long after the loss of the ship; and the certificates, which were called for by the defendants counsel, if they are evidence of any thing, show that no foundation for such a suspicion existed at the time they were given, for the purpose of enabling the assured to obtain payment of his loss from the underwriters. The representation was therefore true in the sense in which both parties must have understood it at the time it was made. The conclusion at which I have arrived is, that there was no error in the charge of the judge who tried this cause in the superior court of the city of New York; and that no legal reason existed for reversing the judgment which that court rendered in favor of the present plaintiff in error.

The judgment of the supreme court should therefore be reversed, and the original judgment should be affirmed with costs to Irvin the plaintiff, in this court, and also upon the

Herrick v. Malin.

writ of error in the supreme court; together with interest on his original judgment by way of damages for the delay caused by that writ of error.

On the question being put, Shall this judgment be reversed? all the members of the court present, who had heard the argument, answered unanimously in the affirmative. Whereupon the judgment of the supreme court was reversed, and the judgment of the superior court of the city of New York AFFIRMED.

HERRICK VS. MALIN.

An alteration in a deed though made subsequent to its execution by the grantee himself does not avoid it, if under the deed a legal title became vested in the grantee by transmutation of possession, either by livery of seizin or by the operation of the statute of uses.

It is otherwise, however, when an action is brought upon the deed for a breach of the covenants therein, or upon a bond or other sealed instru ment; then upon the plea of non est factum, the plaintiff is bound to show it to be the deed of the party prosecuted, and if there has been an alteration of the instrument, it must be satisfactorily explained.

So also if an alteration appears on the face of a bill of exchange or promissory note, the plaintiff in an action for its recovery, is bound to give evidence in explanation.

Where the alteration in a deed is material, the party seeking to enforce it is bound to give some explanation as to the apparent alteration, even if the deed be of more than 30 years standing, and is offered in evidence without proof, as an ancient deed. So it seems, explanation may be re quired where the deed is proved without producing and examining the subscribing witnesses; and if it be not given, a jury will be warranted in finding in opposition to that part of the deed appearing to be altered, if the apparent alteration be of such a character as to create a strong suspicion that it had been fraudulently made.

It seems, however, that where there is a mere interlienation in a deed, without any thing to excite suspicion that it was not made at the time that the deed was drawn and executed, the reasonable presumption is, that it was made before the deed was executed.

This was an action of

ERROR from the supreme court. ejectment, brought by Rachel Malin against Israel Herrick for the recovery of a tract of land conveyed to her by one James Hathaway, by deed, bearing date 30th July, 1794.

Herrick v. Malin.

"A

The premises conveyed being described as follows: "certain tract of land in township number seven in the se"cond range of Massachusetts pre-emption, being in com

mon and undivided with the proprietor of said land, and "supposed to contain about four hundred acres it being all "my right, title, interest and demand to lands in said town, except one hundred acres, which is conditionally convey"ed Mariah Hathaway. The remaining part of my right "in said town is hereby conveyed to said Rachel; and I "do, by these presents, put said Rachel in my place and stead, to receive said lands in the division thereof with the "said proprietor, to her own use and to her heirs and as"signs forever." The deed was read in evidence without objection. At the time of the execution of the deed, Hathaway resided on the premises conveyed; he died about two years thereafter, and his widow continued in possession about four or five years after his death, when she quit. After which, the premises remained unoccupied until the defendant entered in 1824 or 1825. On the part of the defendant, a witness was called, who testified that from an inspection of the deed executed by Hathaway to the plaintiff, it appeared plain to him that a letter had been erased from the end of the word proprietor, (as italicized above;) that where the word land is now written, (italicized as above,) he could discover that the word town had been originally written he could see the outline of the letters t, o, and n, and what might have been a w; that the word town appeared to have been written with the same ink as the rest of the deed, whereas the word land was written with different ink, darker and apparently newer. As to the words in said town, (italicized as above.) he testified that the word in and said, and the two first letters of the word town, appeared to have been written over, with blacker ink than the rest of the deed-the two last letters of that word having probably been worn off, or torn off by accident. The counsel for the defendant requested the judge who presided at the trial of the cause, to charge the jury that the alterations in the above deed were material, and avoided the deed if made after its execution, even though made by a stranger;

Herrick v. Malin.

that if the alterations were immaterial and were subsequent to the execution of the deed, made by the grantee or by her direction or with her assent, such alterations would avoid the deed and prevent its being legal evidence of title; and that the alterations must be presumed to have been made subsequent to the execution of the deed, until the contrary was made to appear. The judge omitted to charge the jury as requested, and instructed them that if they were satisfied with the evidence in the case, they should find a verdict for the plaintiff. To which charge, and omission to charge as requested, the counsel for the defendant excepted. The jury found a verdict for the plaintiff. There was much other evidence in the case, and various other questions of law agitated, but the case is reported only in reference to the question arising upon the alterations of the deed. The defendant applied to the supreme court for a new trial, which was denied, and judgment was rendered for the plaintiff. In reference to the question of alteration, Chief Justice SAVAGE, who delivered the opinion of the court, in a case of the same plaintiff against 1. N. Rose, in which the same question arose, observed: "It is said, however, that the deed has been altered, and, in consequence of such alteration, it cannot be evidence to support the plaintiff's title. The first subject of enquiry in relation to this point is, whether the alteration is in a material part. The only alteration consists in writing the word land upon an erasure of the word town, and erasing the letter s at the end of the word proprietors. This alteration occurs in the description of land conveyed; it originally read, "a certain tract of land in township number seven in the second range of Massachusetts pre-emption, being in common and undivided with the proprietors of said town." Now it makes no difference whether the parcel conveyed was in common and undivided with the proprietors of said town, or with the proprietor of said land. The word land can have no other sensible meaning than township or town, in the connexion in which it is used. If land is held in common, there must be at least two owners; to say that the grantor holds in common with the proprietor of said land, is saying that he holds in