
    William Booker and John J. Howell vs. Alexander Stivender.
    
      Deed — Alteration with consent, effect of.
    
    Some time after a deed poll conveying land liad been executed, tlie grantor, in tlie presence of the grantee and with his consent, and in the presence of one of the two subscribing witnesses, inserted at the end of the deed, and in conformity with the original understanding of the parties, the words, “saving and excepting the saw timber on the above-mentioned premises,” and the deed was then proved and recorded as thus altered: — Held, that the insertion was inoperative and did not reinvest the grantor with the title to the saw timber, which had passed out of him by his execution of the deed.
    BEFORE WARDLAW, J., AT LEXINGTON, SPRING TERM, 1859.
    The report of his Honor, the presiding Judge, is as follows:
    “ Action of trespass, .quare clausum fregit, brought, it was stated, for that the defendant had cut saw-mill timber upon a tract of land to which he had title, subject to a reservation of saw-mill timber conveyed to the plaintiffs.
    
      “ Alexander Geiger was once owner of all the land in the Boland Williams’ grant. The plaintiffs adduced a deed of conveyance from him to them of the western part of the grant, 'also of all the saw-mill timber on a tract of land lately sold John M. Jefcoat, it being the remainder pf the Boland Williams’ grant,’ dated October 10, 1849, and recorded March 27, 1854.
    
      “ The plaintiffs further adduced three deeds of conveyance, which, under notice, the defendant produced, to wit:
    “1. Prom Alexander Geiger to J. M. Jefcoat, dated September, 1846, recorded October 26, 1846, for 1,078 acres, 'being the eastern part of the Poland Williams’ grant.’ To this deed, the plaintiffs said, was annexed a reservation in these words: 'Saving and excepting the saw timber on the above-mentioned premises.’
    “2. From J. M. Jefcoat to W. H. Cooper, of the eastern part of the grant to Poland Williams, 'saving and excepting the saw timber on .the above-mentioned premises,’ dated June 6, 1849, and recorded October 26, 1853.
    “3. From W. H. Cooper to Alexander Stiver:der, the defendant, of the same land, without reservation, dated November 7, 1850, and recorded May 10, 1854.
    "The defendant objected to the admission of the first-mentioned of these three deeds, because of material alterations which he said had been made therein since its execution. Upon inspection of the deed, the consideration of one dollar appeared to have been erased, and in lieu thereof eight hundred and —:--dollars interlined; and the words of reservation above-mentioned were at the end of the conveyance, and seemed to have been added after the names of the witnesses had been written. In confirmation of the impressions produced by inspection, the defendant produced the deposition of Jacob Pedman, one of the attesting witnesses of the deed, to the purport following, viz.:
    
      “Jacob Redman.- — Alex. Scott and myself were subscribing witnesses. I saw the deed signed, sealed and delivered, on the day it bore date. The words ' saving and excepting the saw timber on the above-mentioned premises’ were not then in the deed; but on the 26th October, 1846, I went, at the request of Jefcoat, to witness the insertion of the true consideration in the deed. Jefcoat said to Geiger, ‘ I want you to put in the title the money I have to pay.’ Geiger agreed, and said, ' One thing was forgotten: the exception of the timber.’ Jefcoat assented to that; they went together into the Ordinary’s office, and the words in question were inserted by Geiger in my presence. Alexander Scott was not there, nor any other person besides the parties to the deed and myself. There was no new attestation in writing. I proved the deed, interlined as it is, before a magistrate for recording, on the same October 26.
    “ I thought the deed inadmissible; but I was further of opinion that in September the whole land had been conveyed to Jefcoat, and that no valid reservation or exception could afterwards be made without some act which would operate as a re-conveyance from him. It did not seem to me that an alteration made by Geiger in October, with the assent of Jefcoat, in the' presence of one witness only, could, by any estoppel applied either to parties or witness, effect a valid re-conveyance of the timber either to Geiger or his assignees.
    " Therefore, as the case of the plaintiffs depended entirely on the words of reservation which had been interlined, I ordered a nonsuit, with leave for the plaintiffs to move to set it aside.”
    The plaintiffs appealed, and now moved this Court to set aside the nonsuit, upon the grounds:
    1. Because the alteration of the deed by the grantor and grantee, and causing it to be recorded with such alteration, was equivalent to a re-execution of the same, and was valid for the purpose intended, though not attested by a witness.
    2. Because it was not competent for A- Geiger, the grantor, or for J. M. Jefcoat, the grantee, to raise this objection to the validity of the deed, after themselves causing it to be altered, and recorded as altered; nor is it competent for any one claiming under them, as the defendant was shown to do : the record of the deed is conclusive as to them.
    8. The reservation of the timber privilege was a rne're easement and was valid, though there was only one witness, or had been no witness at all.
    
      4. The reservation was not by parol, but in writing, and by one thereto lawfully authorized, if it was such an interest in land as required to be transferred by writing.
    5. The testimony of the subscribing witness to invalidate the deed after probate, by himself, was inadmissible; and more especially, as it was defendant’s own deed produced under notice.
    6. If the alteration of the deed from Geiger to Jefcoat, of September, 1846, in an essential part, rendered it void, then the title remained in Geiger, and he might well convey the timber privilege to the plaintiffs, as he did by a valid deed, 10th October, 1849.
    
      Fori, Do Saussure, for appellants.
    
      Bauskeit, contra.
   The opinion of the Court was delivered by

Wardlaw, J.

By his deed poll of September, 1846, Alexander Geiger conveyed the land in question, with all its incidents, to J. M. Jefcoat; and afterwards, October 26, 1846, the grantor and grantee, in the presence of one of the two witnesses who attested the execution of the deed in the previous month, altered the deed by inserting a larger sum as the consideration than was expressed in the deed, and by incorporating a reservation in the following words : “ saving and excepting the saw timber on the above-mentioned premises.” The deed, in this changed form, was recorded the same day in the registry of mesne conveyance. This is an action of trespass q. c. f. for cutting the saw timber on the land, and the plaintiffs can recover only on the postulate that this reservation is valid. The alterations are material, and if they had been made under certain circumstances, as by the grantee without the privity of the grantor, would have destroyed the deed as a muniment of title, whatever may have been the effect on the title itself; but they were made by the common consent of the parties, and in pursuance of the stipulations of their original bargain, and are not considered as annulling the deed, although that matter seems to be immaterial. There was no reconveyance by the grantee to the grantor of any interest in the land, nor any written agreement or memorandum on his part recognizing the existence of any interest or easement in the premises abiding in the grantor.

The case of Knotts vs. Hydrick, 12 Rich. 314, determines, that where a grantor of a tract of land in the conveyance reserves for himself the growing timber trees, this is really an exception, in the language of the law, of part of the realty which would have passed to the grantee if the exception had not been made. If Jefcoat had made any re-conveyance or grant of the saw timber to Geiger in writing, it would not have been necessary, in my opinion, that the grant should be attested by two witnesses, nor indeed by any witness, for the Act of 1795, requiring the attestation of two witnesses to conveyances of the fee, (Craig vs. Pinson, Chev. 271,) can hardly be applied to a conveyance of a life estate, especially where the interest is incorporeal; and the exception in the present instance, being to an individual named without mention of his heirs, would not be regarded in any event as operative beyond the life of Geiger. Knotts vs. Hydrick. The question in the cause is whether the exception be at all operative.

Undoubtedly the conveyance from Geiger to Jefcoat in September, 1846, immediately upon its execution, passed the title of the whole realty comprised in the tract, including the trees, to the grantee, Jefcoat.; and it seems equally clear that no destruction of the deed would serve to revest the title in the grantor. If a grantee of land himself alter or otherwise destroy his deed, his title is not gone, although the evidence of it may not be produced so easily. 1 Green. Ev. 568. In our own case of Turnipseed vs. Bussey, 1 McC. 279, which has been always followed since, the grantor and grantee, intending to rescind their bargain and revest the title in the grantor, burnt the conveyance, and this act, in the absence of re-conveyance, was held to leave the title in the grantee. It may be concluded, then, safely, that the alterations of the deed in October, 1846, even if they avoided the deed, did not revest the grantor with title to any portion of the real estate conveyed by him.

It is argued that the alteration of the deed by the common consent of the parties is equivalent to a re-execution of it, though not attested. The re-execution of a deed needs the same formalities required as to the original execution. If the conveyance, being of the fee, at first required attestation by two witnesses — -and that is settled by Craig vs. Pinson— another execution of a deed conveying the same subject, with an exception, also needs the attestation of two witnesses; and the supposed re-execution in this case lacks this requisite. The notion of a new execution of the whole deed is hardly plausible, although this is very distinct from the inquiry whether the matter reserved or excepted may not have been transferred adequately by Jefcoat to Geiger. In support of the doctrine of re-execution of the deed, the appellants principally rely on the case of Hudson vs. Revett, 4 Bing. 368, 15 E. C. L. R. 467. There defendant executed a deed conveying his property to trustees to sell for the benefit of certain creditors, the particulars of whose demands were stated in the deed ; a blank was left for one of the principal debts, the amount being then unknown, the exact amount of which being ascertained was inserted in the deed the day after it had been signed and sealed by the grantor, but this was done in his presence and with his assent. He afterwards recognized the deed as valid, particularly by his presence when it was executed by his wife, and by joining her in a fine to enure to the uses of the deed. Held, that the deed was valid, notwithstanding the filling of the blank after execution, and that the deed being incomplete by reason of the blank when signed and sealed, might be presumed from the acts of confirmation to be re-delivered. But the distinction between that case and the present is very broad. There the deed was confirmed as to the grantor, who had signed and sealed it by reason of his acts of confirmation, and so far as appears the deed needed no witness. The Court rested that case on the authority of Carter vs. Straphan, Cowp. 201, where a deed executed by a married woman, and void from her disability, had been confirmed by her when dis-covert; and the jury was instructed from her confirmation to presume a re-execution by her. No just censure can be predicated of the general doctrine that a void or incomplete deed may be confirmed by the grantor; but the question before us is, whether or not a grantee assenting to an alteration of a deed already effectual and complete redintegrates the title of the grantor. The grantee here has not assented in any written form, by himself, or an agent authorized in writing, as required by the statute of frauds, to transfer to the grantor any interest in the land which the latter had previously conveyed. The procuring of the deed to be submitted to probate and to be recorded are not substitutes for his conveyance or agreement to convey, and merely afford additional proof of that which is otherwise plain, that he assented to the alteration of the deed. It is loosely said in some of our cases that the acceptance of a deed as much estops a party as the making of a deed ; but this is true only whore the grantee by indenture or other writing has committed himself. The acceptance of an estate does sometimes estop as a matter in pais; for instance, where one accepts a lease from another, he cannot while in possession dispute the title of the landlord.

Our case of Giles vs. Pratt, 2 Hill, 439, a binding authority, decides that a deed poll does not estop the grantee; and supersedes the necessity of reasoning on the subject. Sec. 2 Smith L. C. 417.

The suggestion in the fifth ground of appeal, that the witness after making probate of the deed containing the alterations could not invalidate the deed, was not argued before us, and it is plainly untenable, at least so far as relates to the circumstances of the alteration. The witness and the party offering him did not seek to invalidate the deed, and the whole controversy was as to the incorporation of new provisions in the instrument.

Ordered that the appeal be dismissed. ■

Johnstone, J., concurred.

O’Neall, 0. J., dissented.

Motion refused.  