
    Smith, appellant, v. Chadsey et al.
    
    
      Alteration of instrument.
    
    tn an action to foreclose a mortgage, given to secure a part of the purchase-money of certain mill property which the mortgagees had conveyed to the mortgagors by deed bearing even date, it appeared at the trial that the attorney who drew the papers, and with whom the mortgage was left to have recorded, acting under a supposed authority, went to the county clerk’s office after the deed and mortgage were both recorded and altered each of them by inserting, after the description of the property, the words: “ And also all machinery and gearing and wheels in said mill, and used in the operation of the same.” It appeared that one of the mortgagors had no knowledge of the alteration, and had not consented thereto. The evidence as to the consent of the other mortgagor was conflicting. The evidence was also conflicting as to whether the alteration was made by the procuration of the plaintiffs. At the close of the testimony, the judge, on motion of defendants, dismissed the complaint on the ground that the alteration of the mortgage was material and rendered it void. The plaintiffs asked to go to the jury upon the question of the consent of the mortgagors to the alteration, and upon the question whether the alteration was made by or upon the procurement of the plaintiffs, all of which was refused. Held, that the judge erred in refusing to allow the plaintiff to go to the jury upon the latter question. If the alteration was made without the plaintiffs’ procurement or consent, it was to be regarded the same as if done by an entire stranger, without authority and as of no binding force whatever. Whether absolute authority was given to make the alteration was a question to be determined upon the whole evidence, and the testimony was not so entirely conclusive as to authorize the judge to hold as a matter of .law that there was nothing to submit to the jury, and to dismiss the plaintiffs’ case.
    Actioh to foreclose a mortgage. Judgment at circuit dismissing the complaint.
    
      John Gadman, for plaintiffs.
    
      8. L. Magoun, for defendants.
   Miller, P. J.,

delivered the opinion,\ wherein the evidence is reviewed.

Judgment reversed and new trial ordered.  