Page:Federal Reporter, 1st Series, Volume 3.djvu/24

 COX V, PALMBB. 17 �were not in the instrument when originally executed and filed for record. But the strength of this testimony is greatly impaired by certain facts which are in the evidence. In the first place, Mr. Finley has, since the execution of the mort- gage, become the purchaser of the premises, and has, there- fore, a strong interest in defeating the lien of the mortgage. Besides, he was the lawyer who drew the mortgage for the mortgagee, and the court will not presume, in order to give additional weight to his testimony, that he purposely omitted these material words of description, or that he accidentally did so, and afterwards, with knowledge of the mistake, and without informing his client for -whom he had drawn the mortgage, undertook to defeat the mortgage by purchasing tùe property. The court will rather presume that, if the words were omitted from the original instrument, Mr. Finley did not know it at the time. If he did not know it at the time he has clearly had no opportunity to ascertain it since, for he shows, by his own testimony, that he has not had posr session of the instrument since its execution. Again, it ap- pears beyond question that the interlineation is in the hand- writing of Finley, and, since he has not seen the mortgage since the time of its execution, it foUows that he must have inserted the words in question at that time. �It further appears, from the testimony of Mr. Horn, a witness for plaintiff, that when he called the matter of the interline- ation to the attention of Finley, sometime before the com- mencement of this suit, the latter stated that the mortgage was ail right, and that he had himself rpade the interlinea- tion. It is true that Finley gives an entirely different ver- sion to this conversation, but, as he is an interested witness, his testimony must give way to that of Mr. Horn, in so far as they are in conflict. The most that can be claimed, with respect to the evidence bearing upon this question, is that it is evenly balanced, and, assuming that to be the case, my decision must turn upon a question of law. What is the pre- sumption in such a case? Upon this question there is an apparent conflict of authority. I think, however, it is appar- ent only, and not real. There are cases in which it has been �v.3,no.l — 2 ����