dissenting:
I respectfully dissent. In my opinion, the deed executed by Mrs. Spence (Owner) was fraudulent because the deed was materially altered prior to delivery to Buyer 3. As a result, I *132would reverse the ruling of the trial judge dismissing the complaint for failure to state a claim.
The majority holds that Buyer 4 was a bona fide purchaser who took title from Buyer 3 in good faith and without notice. I disagree. In my opinion, the majority fails to address the black-letter law which provides that a fraudulent deed is void ab initio and constitutes a nullity. 26A C.J.S. Deeds § 114 (2001). As a result, the deed cannot be the basis for superior title against an original grantor, even under the equitable doctrine of a bona fide purchaser. Id; see also Concord Corp. v. Huff, 144 Colo. 72, 355 P.2d 73, 76 (1960) (holding that void deeds do not convey title); Andre v. Hoffman, 81 W.Va. 620, 95 S.E. 84, 87 (1918) (holding that the grantee of a forged deed cannot acquire title under the forged instrument).
In the present case, Owner 2 executed a deed to convey 0.72 of an acre to Owner 3 in 2000. Prior to the delivery of the instrument to Owner 3, the deed was altered without the consent of Owner 2, by an Agent for Owner 2. The alteration made the instrument reflect a conveyance of 0.82 of an acre. Owner 3 then conveyed the 0.82 of an acre to Owner 4. However, Owner 2 wished to only convey 0.72 of an acre and signed an instrument that reflected such. The majority focuses on the intent of the person that made the alteration, Agent, however, this does not address the issue that instrument did not reflect the intent of Owner 2. As a result, the alteration of the instrument by Agent, regardless of Agent’s intent, prevented title from passing.
Consequently, I would hold that the change by the agent without the consent of Owner 2 constituted a material alteration. In my opinion, this would prevent title from passing to Owner 3 or Owner 4 because the unauthorized change in acreage resulted in a fraudulent deed. Accordingly, I would reverse the trial court’s decision dismissing the compliant.