Page:The Green Bag (1889–1914), Volume 17.pdf/66

 EDITORIAL DEPARTMENT that one is a residuary legatee will not aid him, in the least, in proving that he also has a pecuniary legacy charged on land, and he must therefore adduce the same evidence that would be required of any other person, i.e., he must show that the testator has given him a pecu niary legacy, of the same amount as that in tended for A, and has charged it upon his land in the same manner." Conversion by severance of crops, timber or minerals is briefly treated in closing.

"DISCHARGE of Contracts by Alteration" is the subject of careful study of cases by Pro fessor Williston, the first part of which appears in the November number of the Harvard Law Review (vol. xviii., p. 105). He treats first of the ancient doctrine of discharge by altera tion, distinguishing the effect of subsequent alteration of a deed which cannot affect a title validly passed and of a covenant which must be valid when enforced. This question of substantive law is complicated, however, with a question of evidence. "Though the rule of evidence is often broadly stated, the English courts have held that not only in the case of alteration by a stranger may the altered deed be given in evi dence as proof that a title passed, but that this may be done even where the alteration was chargeable to the party offering the deed, and similarly that the cancellation of a con veyance does not prevent proof by one con senting to the cancellation that such a convey ance was made." "In this country alteration by a stranger does not generally avoid a deed, so that such a deed can of course be given in evidence, but it has been held generally, that if a material alteration is fraudulently made, the altered deed cannot thereafter be given in evidence." "The doctrine is applicable only to unre corded deeds, for when a deed has been re corded and subsequently fraudulently altered or destroyed, there is no difficulty of proof if the statute makes a copy from the records primary evidence. If, however, a deed is al tered before it is recorded, the record can afford no help. If a writing is not necessary to the transfer of property, as is the case with chattel property, alteration of a bill of sale, or

55

other writing, conveying such property will not prevent proof of the transfer." The rule has been applied not only to all written contracts but even to writings like memoranda to satisfy the Statute of Frauds. In England alteration by a stranger still discharges the contract, if the instrument were in the custody of the obligee; in this country it does not. An unauthorized alter ation by the obligee does not affect the rights of the obligee, and an alteration to correct mistake and cancellation by mistake are not fatal in this country. At common law an authorized alteration of a sealed contract would be invalid, for the deed was thereby de stroyed. To-day the obligee would be re lieved from such consequences. An author ized alteration of an unsealed contract is bind ing on both parties and it will be enforced in the altered form. Ratification may be even more effective than previous, authorization, for it may amount to a redelivery and therefore a revival of an altered deed. This would not suffice, however, if witnesses or acknowledg ment were required. Restoration of an avoided contract is ineffective without the consent of the obligee, but if the alteration were inno cent when restored, it will be enforced.

"WHAT Constitutes a Complete Transfer of Stock as against Third Parties" is the subject of an article by Romney L. Willson in the Central Law Journal of Dec. 2, 1904 (Vol. lix., p. 448). The conflict of authority between different States is analyzed and the conclusion is reached that "it is plain that the marked tendency in the decisions and statutes is toward the elimination of formalities, such as a transfer on the books. The opinion seems to be growing rapidly that public policy and con venience demands that this class of property, or rather its representative, the certificate of stock, be allowed to pass from hand to hand with as much ease as does commercial paper." ' ' Whether this tendency is salutary may be questioned in spite of such high sanction. That the more wealth is invested in certain kind of property the easier the transfer of that property should be made by law, is a theory that is subject to qualifications. The law should make transfers as easy as possible