Ely v. Ely

Dewey, J.

We have no doubt as to the correctness of the rulings of the court, that the pendency of the suit to foreclose the mortgage was no bar to the action on the note, and that the conditional judgment must be entered as well for the note that had been the subject of a separate suit, as for the other, both being included in the mortgage, and both being unpaid. The causes of action, and the remedies sought to be enforced, are not legally the same. The one is a personal; the other a real action. The one seeks a judgment and execution against the person and property of the debtor; the other seeks merely to enforce a lien against certain real estate which he has charged with the payment of the debt. The exceptions in the action on the note must therefore be overruled, and the judgment for the plaintiff affirmed.

Obtaining that judgment does not take the note out of the mortgage. The payment of the same on the separate judgment will of course discharge so much of the conditional judgment but the creditor may pursue both remedies to enforce .the payment of his notes.

Upon the question of interlineation, the judge rightly instructed the jury that the burden of proof was upon the plaintiff to show that it was made before the execution and delivery of the mortgage.

But the further instruction that, in the absence of all proof to the contrary, the presumption of law was that the interlineations and alterations were made prior to or contemporaneously with the execution of the mortgage, was wrong. There is no such legal presumption. If it were so, the party setting up the instrument might always introduce the instrument as a genuine one, and it would stand as such if no evidence was introduced by the other party to show that it was in fact altered after the execution. Now the burden is on the party offering the instrument, to prove the genuineness of the instrument, and that the alterations apparent on the same were honestly and properly made. To what extent he shall be required to introduce evi *442dence will depend upon the peculiar circtimstances of each case. The alterations may be of such a character that he may safely rely upon the paper itself, and the subject matter, as authorizing the inference that the alteration was made before the execution, or he may introduce some very slight evidence to account for the apparent interlineations. But there is no presumption of law, either that the alterations and interlineations apparent on the face of a deed were made prior to the execution of the instrument, or that they were made subsequently. That question is to be settled by the jury, upon all the evidence in the case offered by the parties, and the surrounding circumstances, including, of course, the character of the alterations and the appearance of the instrument alleged to have been altered. Upon this ground, the exceptions in the second case must be sustained, and a new trial had.