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1824.

Miler

Stowart

that an altered deed or instrument was good, but that there was no surrender and redelivery implied in the alteration, to devest the property.

There is nothing in principle to warrant the idea, that an alteration of an instrument implies a surrender and redelivery. A surrender is an executed.contract. To constitute a surrender of an instrument by a vendee or obligee, to a vendor or obligor, two things are necessary : 1. An actual delivery of possession to the latter; and, 2. An understanding or agreement to part with the property in the instrument. The act and the intent must concur. A mere delivery of possession by the vendee of the deed, for a special purpose to the vendor, or any other person, as to keep for him, or to do any other particular act in relation to it, is not a surrender. The vendee still has the property in the deed himself. The vendor, in quel case, is only his bailee. "Admit, for the sake of argument, that the alteration of a deed required a new delivery, in respect to the part altered, the 'vendee might then deliver possession of the deed to the vendor, for that particular purpose, viz. to enable the vendee to deliver it anew, to give effect to the altered part; but not surrender his property in the deed in respect to the parts not altered. Such an absolute surrender of the wbole deed, is not essential ; and if not essential, it should not, by a fiction of law, be required. Suppose the rendee should hand the deed to the vendor; to subjoin on a blank under it a new and distinct deed for another tract of land, which is done, does such a delivery of the deed, for such a purpose,

1824.

Millon

Stewart.

amount to a surrender of the old deed ? If not, is there any difference, in reason and common sense, whether the conveyance of the second tract is contained in a distinct and separate deed sub joined on the same paper, or whether it is effected by an interlineation, with consent of parties, in the old deed ? Fictions and subtilties should never be introduced into the law, which is a practical science, unless to subserve the purposes of justice. In fictione juris semper subsistit equitas. This fiction of a surrender is unnecessary ; it may be injurious. A., pursuant to contract, conveys a tract of land to B. ; they afterwards discover, that by mistake, a lot was omitted, and, by consent, it is interlined. Upon this doctrine of surrender, the deed and property, upon the interlineation, reverted to the vendor, and continued in him until the new delivery; and, of course, it is subjected to the intermediate judgments of other liens of the vendor. The rule of law may, and ought to corres pond, in suchicases, with the real fact; considering the lands originally contained in the deed as passing at the date, and the land inserted by interlineation, as passing at the time of the interti, ning.

2. There was no cancellation of the original instrument of appointment. An alteration affects an instrument in part; a cancellation destroys it altogether. When cancelled, a deed must be resealed and redelivered, to revive it." It is nowhere

a Shep. Touch. 69.

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v.

Stewart.

1824. said, that a redelivery is necessary, in case of an

v alteration by consent. Miller

3. The alterations did not cause a revocation of the old appointment. It is admitted, that the appointment to, and acceptance of, a new office, incompatible with the old, is a revocation of the lalter, as, if a Coroner accepts the office of a Sheriff. So, if there had been an intermediate office, between the Collector and his Deputy, incompatible with the latter, its acceptance, by Ustick, might have been a revocation of his office of Deputy. In the present case, the alteration created no office. It continued the same office, only extended over an additional territory.' Ustick had the same office and same power over the first eight townships after, as before the alteration. It is said, his sphere of action was enlarged. Be it so: it was enlarged only in respect to territory; his sphere of action over the first eight townships continued the same. It is said, that after the alteration, the nine townships constituted but one offi e, and that there was a new appointment consequently. The interlineation, as before shown, did not destroy or cause a surrender of the first appointment, with respect to the eight original townships. If, then, there was a new appointment of an office, it extended only to the ninth township, and that is a distinct office from the other eight. If there were not a new appointment, but simply an enlargement of the old office, and still constituting one office, it is an office consisting of different parts in respect to territory, which parts are easily distinguished, and were created at different times; the

1824.

Millar

Stewart.

former part, composing the first eight townships. being in no wise impaired by the latter, and of course, the guaranty is in no wise impaired by it. It is said, that it is impossible to distinguish the moneys paid in from the ninth township, from those collected in the other eight. The same objection might have been raised, and to the same effect, if the appointments had been by distinct instruments. The jury will distinguish; it is a question for them. It is said, that the responsibility of Ustick was increased ; and so is the responsibility of every debtor increased, who contracts new debts; but that does not discharge a surety.

4. Though where, in a bond, a previous instrument is recited, the contents thus recited are a part of the bond; yet the instrument recited is no part of the bond. Suppose A. conveys a tract of land to B., and in order to explain the boundaries, a deed from A. to C. for a tract of land adjacent is recited, does the latter deed become a part of the former; and if destroyed, does it destroy the other? The dependency, or connexion between the instruments recited, and the obligation in which it is recited, must always depend upon the nature and object of the instruments, and the intent of the parties.

Again ; if this alteration, as contended on the other side, amounted to a surrender of the instrument of appointment, it was necessarily a revocation of the appointment. Such a revocation cannot be made under the act of Congress, without public notice being given in the district.“ No such

a 4 U. S. I.. 557, 558.

1824! notice was given in this case. If this alteration

amounts to a revocation of the instrument, in law, Miller

B . and as such revocation cannot be made without Stewart.

public notice, the alteration must be void, and the original instrument stand good.

Mr. Coxe, contra, argued, (1.) That the alteration in the original instrument of appointmept, by the interlineation in a material part, destroyed the bond as against such of the obligors as were not parties to the act. The appointment, being .recited in the bond, became incorporated into it, and they, together, form quasi one instrument. The condition of a bond or defeasance, need not be contained in the same paper, but, though written on a distinct and separate piece, they together constitute but one instrument."

If the condition of a bond, thus engrossed on a. separate piece of paper, becomes invalidated by any act having that legal operation, the whole instrument, though disconnected, becomes void. As in the case put by Sheppard, if the obligation depend upon, or be necessary to, some other deed, and that deed become void, the obligation is become void also: as, if the condition of the obligation be to perform the covenants of an indenture, and, afterwards, the covenants be discharged, or become void, by this means the obligation is discharged and gone for ever. The common case of arbitration bonds will illustrate this position:

a Shep. Touch. 367 870. Cro. Eliz. 657.
6 16. 394

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