Bernstien v. Ricks

Howei/l, J.

This is an action to recover of the maker the amount of a promissory note, with a recognition of a mortgage, executed to secure its payment, in answer to which the defendant, besides the .general issue, denies his signature to the obligation sued on.

After the note was received in evidence without objection, the defendant objected to the admission of the act of mortgage, on the grounds that it was inadmissible under the pleadings, and did not correspond with the one declared on; and to the introduction of the depositions of the notary, before whom the act was passed, on the grounds that parol evidence is inadmissible to contradict or vary a written instrument; that a notary could not be allowed to explain, vary or contradict his own act, and that in the absence of any allegation of error or fraud no evidence could be received to show that the act of mortgage was different from what it purported to be. It appears that the word ‘ maturity ’ in the note had been erased and the word ‘ date ’ interlined, while the act of mortgage described the note as bearing interest from maturity..

*410We consider that it was competent for the erasure and in torlineation in the note to be explained or accounted for, and that the notary was a competent witness for tlm purpose. This .being explained, as .it was satisfactorily done by him, the note corresponded with the act of mortgage offered, and there was no contradiction or varying; the facts as they existed were shown. • •

After the note and act were prepared, the parties caused the change in the note to be made, and the notary neglected to make the corresponding change in the act of mortgaged '

Judgment affirmed.