
    John Maise vs. Brioe M. Garner.
    ^hen an obligation exists»primafacie valid upon its Tace, but which by extrin* sic facts, is proven to be void, and of which a vexatious use may be made, to the prejudice of the apparent obligor, he may apply to a court of equity to have such obligation delivered up or cancelled, notwithstanding a court of law has jurisdiction to declare it void, upon a suit instituted thereon.
    If a deed with special warranty be fraudulently altered by the bargainee, afte# its execution and delivery, by inserting therein a clause of general warranty, the clause thus fraudulently inserted, will be ordered to be erased by a court of equity; and such order will be made, notwithstanding the deed, so altered, conveyed no title to defendant.
    The bill states, that on the 17th day of September, 1815, the complainant sold to defendant a tract of land, purporting to be on, or near the Caney fork of Cumberland river, containing five thousand acres, more or less, that he ex* ecuted to defendant a deed for the same, and that the defendant executed to complainant his notes for the purchase money. It further states, that at the time of the sale it was believed by both defendant and complainant, that the land could not be identified, and that the object of the defendant in purchasing it, was to obtain the warrant. It also states that the claim or title of complainant, so as to enable himself or the purchaser from him, to draw the warrant, -was considered very doubtful,-in consequence of which it was sold to defendant at a very reduced price. The complainant’s claim or right to the land, is fully set forth in the bill, arid the circuit court being Of opinion that in law he had no title whatever to the land or warrant, dismissed the bill upon that ground. . ' -
    The bill further alleged, that the deed executed by complainant on the 16th September, 1815, to the defendant, was a conveyance with special warranty only, and that the defendant before offering it for registration, had altered it by additions and erasures, so as to make it read as a deed with a clause of general warranty.
    The defendant, in his answer, admitted the execution of the deed and notes, but most positively denied making any alterations or erasures therein, and insisted if the facts even were so, that the court had no jurisdiction.
    
      Hunt for complainant. O. B. Hayes for defendant.
   Catron* J.

delivered the opinion of the court. The cjrcuj^ cour(; dismissed the bill* “because it appeared from the Complainant’s own showing, that he had given no consideration for the bonds given to him by defendant, and made no offer to rescind the contract, but claims two of said bonds.”

This court, is first of opinion, that where an obligation exists valid upon its face, but which by extrinsic facts is proven to be void, and of which a vexatious use may be made, to the prejudice of the apparent obligor, he has a right to apply to a court of equity to have such obligation delivered up, or cancelled, notwithstanding a court of law has concurrent jurisdiction to declare it void upon a trial at law brought thereon. (17 Ves. 111; 1 Ves. and B. 244; 1 John. Ch. Rep. 517; 7 Ves. 21, 414; 2 Atk. 308; 1 Madx. Ch. Pr. 185.)

This court' is furthermore of opinion, that if the defendant did alter the deed from complainant to himself, after the same was originally executed, inserting therein a clause of general warranty, without the knowledge or assent of complainant, that the clause, thus fraudulently inserted, is subject to be erased from said deed by the order of a court of equity, for the reason, that a Vexatious use may be made thereof to the prejudice of the complainant; and that the defendant may be compelled to surrender up said original deed to have so much thereof stricken out as has been fraudulently inserted after its execution.

This court is also of opinion, that no reason existed sufi ficient to authorize the circuit court to dismiss the bill, growing out of the fact, that no title was vested in defendant to the five thousand acre tract of land, assumed to have been conveyed by the deed alleged to have been altered. By such a course of decision the defendant would be permitted to take advantage of his own wrong, by the commission of a gross fraud, (and perhaps forgery,) which this court apprehends wholly inadmissible. It may be true that the deed vested no title in defendant, yet this did not authorize him fraudulently to insert covenants therein after its execution, which might at a future day be set up against the complainant or his representatives, when all evidence o.f the fraud was lost, by time, and the destruction of the original deed.

The doctrine that a court of equity will relieve in such á case, is a most necessary one in this state, where all conveyances of real estate are registered, copies evidence, -and the originals may be destroyed immediately after registration ; in which event, it would be extremely difficult to prove the forgery — -in mosteases impossible after a lapse of many years. If the party who purports to be affected by the deed, has no power to come into a court of equity to have it cancelled, ox delivered up, it will be wholly beyond his reach, until the grantee sees proper to sue thereon at law. This he may not choose to do, until all the witnesses who can prove the fact of fraud and forgery are dead.

In this cause, the bill alleges the clause of warranty in the deed, was forged by defendant; This is directly denied by the answer, making an issue that this court is unwilling to try, therefore we will send it to law, where it may be tried by a jury.

The effect the answer is to have before the jury, upon the trial of the issue, will be seen by reference to the following authorities. Hunter v. Tinley and Wallis, (1 Ten. Rep. 240; Act. of 1782, Ch. 11, Sec. 3; 9 Cranch’s Rep. 160; 1 Phil. Ev. 115 and note.)  