Ten Thousand a-Year. Volume 2

Note concerning the law of Erasures and Estoppels

I. Erasures.—The question—What is the effect of an erasure, an interlineation, or alteration apparent in a material part of a deed above thirty years old, when offered in evidence?—has led to much discussion both among professional and general readers of this work, as well at home as abroad; and many communications upon the subject have been received by the author. Lord Widdrington at the trial, and subsequently he and the full court, held, in the case of Doe d. Titmouse v. Jolter, that such an erasure was fatal to the case of the party who relied on the instrument in which it was exhibited. In constructing this portion of the story, the author, aware of some difference of opinion on the subject among lawyers, relied upon the following passage in a work of great and long-established authority, (Buller's Nisi Prius, p. 255,) in which the law is thus laid down—"If there be any [material] blemish, by razure or interlineation, in a deed, it ought to be proved, though it were above thirty years old, by the witnesses if living, and if dead, by proving the handwriting of at least one of the witnesses, and also the hand of the party, in order to encounter the presumption arising from the blemishes in the deed." Such, also, is the law laid down in Lord Chief Baron Gilbert's Treatise on Evidence, (p. 89,) and the proposition appears adopted, and these two high authorities cited, in the last edition, (the ninth,) of that celebrated standard text-book, Phillips on Evidence, p. 205, published since the former edition of this work. There is an impression, however, that this strict rule would not now be acted upon; on the ground that the presumption resulting from a continued possession, in conformity with the effect of a deed with erasure or interlineation, is strong enough to overcome the presumption of forgery afforded by the alterations themselves. Still it is possible to foresee great danger arising out of the adoption of such a rule: for a man enjoying an estate in lands, less than one of fee simple, may alter the deed so as to give to himself that superior estate, and then, after a lapse of thirty years, produce the deed so altered, and thereby defeat the innocent party challenging his title to the property. Possibly it would now be submitted as a question for a jury to decide, whether the alteration had been made previously or subsequently to the delivery of the deed? for if previously, the deed remains valid and binding. A deed thirty years old is called "an ancient document," and is said to "prove itself"—i. e. to require no proof of its execution, provided it shall have been produced from a custody which may be reasonably and naturally explained, even though not the strictly proper legal custody.—See the late case of Doe d. Neale v. Sampler, 8 Adolphus and Ellis' Rep. 151; and Doe d. Wildgoose v. Pearce, 2 Moody and Robinson, 240. As to the point made by the Attorney-General, at the trial, that where the right is once vested—i. e. the instant after the execution of the deed—such execution creating a title to the land in question—that right and title cannot be affected by any subsequent alteration of the deed;—it has been affirmed to be good law in a recent solemn decision of the Court of Exchequer, and confirmed in a Court of Error.—See Davidson v. Cooper, 11 Meeson v. Welsley, 799-800. "The moment after the execution of the deed, it has become valueless," said Lord Abinger, "except as affording evidence of the fact that it had been executed." In this case, in which the author was engaged, (in 1843,) the whole doctrine of erasures was thoroughly canvassed; and it was decided, on error, that when an instrument, (whether under seal or not,) which is the foundation of a right sought to be enforced, is altered in a material part, even by a stranger, without the privity of the party affected by it, such alteration makes the instrument utterly void. The Scotch law respecting erasures is exceedingly stringent; and even goes farther than that laid down by Lord Widdrington.

II. Estoppel.—Both this doctrine, and that of erasures, as illustrated by this work, formed the subject of elaborate investigation in an article in the American Jurist for 1842, (vol. xxvii. pp. 50, et sec.) The question relating to estoppel, is thus stated there in abstract terms. "If the son and heir-apparent of a tenant in fee-simple, conveys the land thus held, and afterwards dies in his father's lifetime, is the heir of the father, who also makes his pedigree through the son, estopped by that son's conveyance?" The conclusion arrived at is, that, according to Lord Coke, if such conveyance had been with warranty, the heir would be bound, if assets descended to him from the son.15 But statute 4 and 5 Anne, c. 16 § 22, makes void as against his heir all collateral warranties made by an ancestor who has no estate of inheritance, in possession; and the Act just passed, (1844—stat. 7 and 8 Vict. c. 76 § 5,) permitting the alienation of contingent interests, expressly declares that it shall not enable any heir to dispose of his expectancy.

In this story an heir is represented as conveying away his expectancy; and the author has received an obliging communication on the subject, from one of the greatest conveyancers who ever lived—Mr. Preston—to the following effect. "The rule of law is—Qui non habet, ille non dat: nemo potest plus juris in alium transferre, quam ipse habet. Therefore a grant by an expectant heir, simpliciter, is void. But the doctrine of estoppels (a 'cunning learning,' says Lord Coke) affords exceptions to this general rule." A feoffment with warranty binds an heir, however, not by estoppel, but by rebutter, "in order to avoid circuity of action, which is not favored by the law."—(Co. Litt. 265 a.) He might be estopped by a lease for years, and by matter of record—or by fine and recovery, before those methods of assurance were abolished; but a conveyance by Lease and Release would not bind the heir, on the subsequent descent of the estate: for he had no right at all at the time of the release, made, but that once in the ancestor; after whose decease the heir may enter in to the land against his own release.—(Co. Litt. 265 a.) "The late vice-chancellor, Sir John Leach," says Mr. Preston, "once decided that a release did operate as an estoppel, in conformity with my argument before him; but Lord Lyndhurst on appeal, contrary to his own first impression, on Sir Edward Sugden's handing up to him my own Book on Conveyancing, as a contre projet to my attempt to support the vice-chancellor's decision, overruled that decision."

CHAPTER V

Rank is very apt to attract and dazzle vulgar and feeble optics; and the belief that such is its effect upon mankind generally, is unspeakably gratifying to a vain and ignorant possessor of that rank. Of the truth of one part of this observation, take as an illustration the case of Tittlebat Titmouse; of the other, that of the Earl of Dreddlington. The former's dinner engagement with the latter, his august and awful kinsman, was an event of such magnitude as to absorb almost all his faculties in the contemplation of it, and also occasion him great anxiety in preparing for an effective appearance upon so signal an occasion. Mr. Gammon had repeatedly, during the interval, instructed his anxious pupil, if so he might be called, as to the manner in which he ought to behave. He was—Heaven save the mark, poor Titmouse!—to assume an air of mingled deference, self-possession, and firmness; not, on the one hand, to be overawed by the greatness with which he would be brought into contact, nor, on the other, unduly elated by a sense of his own suddenly acquired importance. He was, on the contrary, to steer evenly between the extremes of timorousness and temerity—to aim, at least, at that happy mean, so grateful to those able to appreciate the effort, and object, of those who had attained to it. Titmouse was to remember that, great as was the Earl of Dreddlington, he was yet but a man—related, too, by consanguinity, to him, the aforesaid Titmouse; who might, moreover, before many years should have elapsed, become himself Lord Drelincourt, and by consequence equally entitled, with the present possessor of that resplendent rank, to the homage of mankind. At the same time that the earl's advanced years gave him a natural claim to the reverence of his young kinsman—(whom his Lordship was about to introduce into the sublime regions of aristocracy, and also of political society)—Titmouse might extract a few ingredients of consolation from the reflection, that his income probably exceeded, by a third, that of the Earl of Dreddlington. This is the sum of Mr. Gammon's general instructions to his eager and excited pupil; but he also gave Titmouse many minor hints and suggestions. He was to drink very little wine—(whereat Titmouse demurred somewhat vehemently, and asked "How the d—l he was to get his steam up without it?")—and on no account to call for beer or porter, to which plebeian beverages, indeed, he might consider himself as having bid a long and last adieu;—to say occasionally, only, "my Lord" and "your Lordship," in addressing the earl—and "your Ladyship," in addressing Lady Cecilia;—and, above all, never to appear in a hurry, but to do and say whatever he had to do and say calmly; for that the nerves of aristocracy were very delicate, and could not bear a bustle, or the slightest display of energy or feeling. Then, as to his dress—Gammon, feeling himself treading on very doubtful ground, intimated merely that the essence of true fashion was simplicity—but here Titmouse grew fidgety, and his Mentor ceased.

During the night which ushered in the eventful day on which Titmouse dined with the Earl of Dreddlington, our friend got but very little sleep. Early in the morning he engaged a most respectable glass-coach to convey him westward in the evening, in something like style; and before noon, his anxieties were set at rest by the punctual arrival of various articles of dress, decoration, and scent—for Titmouse had a great idea of scents. As for his new watch and its brilliant gold guard-chain—ambitious reader! you should have seen them! About half-past four o'clock Titmouse retired to his bedroom, and resigned himself into the hands of Mr. Twirl, the tip-top hairdresser from the Strand, whose agreeable manipulations, and still more agreeable small-talk, occupied upwards of an hour; Titmouse, from time to time, giving the anxious operator abundant notice of the high quarter in which his handiwork was likely soon to be scrutinized.

"Pray-a, can you tell me," quoth Titmouse, drawlingly, shortly after Twirl had commenced his operations, "how long it will take me to get from this infernal part of the town to Grosvenor Square? Dem long way, isn't it, Mr. What's-your-name?"

"Grosvenor Square, sir?" said Twirl, glibly, but with a perceptible dash of deference in his tone; "why it is as one might say a tolerable way off, certainly; but you can't well miss your way there, sir, of all places in town"–

"My coachman," interrupted Titmouse, with a fine air, "of course, had I thought of it, he must know, dem him, of course!"

"Oh! to be sure, sir. There's none but people of the most highest rank lives in that quarter, sir. Excuse me, sir, but I've a brother-in-law that's valet to the Duke of Dunderwhistle there"–

"Indeed! How far off is that from Lord Dreddlington's?" inquired Titmouse, carelessly.

"Lord Dreddlington's, sir?—Well, I never! Isn't it particular strange, if that's where you're going, sir—it's next door to the Duke's—the very next door, sir!"

"'Pon my life, is it indeed? How devilish odd!"

"Know the Earl of Dreddlington then, I presume, sir?"

"Ya-as, I should think so; he's my—my—relation, that's all; and devilish near too!"

Mr. Twirl instantly conceived a kind of reverence for the gentleman upon whom he was operating.

"Well, sir," he presently added in a still more respectful tone than before, "p'r'aps you'll think it a liberty, sir; but, do you know, I've several times had the honor of seeing his Lordship in the street at a little distance—and there's a—a family likeness between you, sir—'pon my word, sir. It struck me, directly I saw you, that you was like some nob I'd seen at the other end of the town." [Here Titmouse experienced pleasurable sensations, similar to those said to be enjoyed by a cat when you pass your hand down its glossy coat in the right direction.] "Will you allow me, sir, to give your hair a good brushing, sir, before I dress it? I always like to take the greatest pains with the hair of my quality customers!—Do you know, sir, that I had the honor of dressing his Grace's hair for a whole fortnight together, once when my brother-in-law was ill; and though p'r'aps I oughtn't to say it, his Grace expressed the highest satisfaction at my exertions, sir."

"'Pon my life, and I should say you were an uncommon good hand—I've known lots worse, I assure you; men that would have spoiled the best head of hair going, by Jove!"

"Sir, you're very kind. I assure you, sir, that to do justice to a gent's hair requires an uncommon deal of practice, and a sort of nat'ral talent for it besides. Lord, sir! how much depends on a gent's hair, don't it? Of two coming into a room, it makes all the difference, sir! Believe me, sir, it's no use being well-dressed, nay, nor good-looking, if as how the hair a'n't done—what I call—correct!"

"By Jove, I really think you're nigh about the mark," said Titmouse; and after a pause, during which Mr. Twirl had been brushing away at one particular part of the head with some vehemence, "Well," he exclaimed with a sigh, ceasing for a moment his vigorous exertions—"I'm blest if I can manage it, do what I will!"

"Eh? What's that? What is it?" inquired Titmouse, a little alarmedly.

"Why, sir, it's what we gents, in our profession, calls a feather, which is the most hobstinatest thing in nature."

"What's a feather?" quoth Titmouse, rather faintly.

"You see, sir, 'tis when a small lot of hair on a gent's head will stick up, do all we can to try and get it down; and (excuse me, sir,) you've got a regular rattler!" Titmouse put up his hand to feel, Twirl guiding it to the fatal spot; there it was, just as Twirl had described it.

"What's to be done?" murmured Titmouse.

"I'm afraid, sir, you don't use our OSTRICH GREASE and RHINOCEROS MARROW, sir."

"Your what?" cried Titmouse, apprehensively, with a dismally distinct recollection of the tragedy of the Cyanochaitanthropopoion, and the Damascus Cream, and the Tetaragmenon Abracadabra; matters which he at once mentioned to Mr. Twirl.

"Ah, it's not my custom, sir," quoth Twirl, "to run down other gents' inventions; but my real opinion is, that they're all an imposition—a rank imposition, sir. I didn't like to say it, sir; but I soon saw there had been somebody a-practising on your hair."

"What, is it very plain?" cried Titmouse, with a kind of horror, starting up and stepping to the glass.

"No, sir—not so very plain; only you've got, as I might say, accustomed to the sight of it; but when it's properly curled, and puckered up, and frizzed about, it won't show—nor the feather neither, sir; so, by your leave, here goes, sir;" and, after about a quarter of an hour's more labor, he succeeded in parting it right down the middle of the head, bringing it out into a bold curl towards each eyebrow, and giving our friend quite a new and very fascinating appearance, even in his own eyes. And as for the color—it really was not so very marked, after all; a little purple-hued and mottled, to be sure, in parts, but not to a degree to attract the eye of a casual observer. Twirl having declared, at length, his labors completed—regarding Titmouse's head with a look of proud satisfaction—Titmouse paid him half a crown, and also ordered a pot of ostrich grease and of rhinoceros marrow, (the one being suet, the other lard, differently scented and colored,) and was soon left at liberty to proceed with the important duties of the toilet. It took him a good while; but in the end he was supremely successful. He wore black tights, (i. e. pantaloons fitting closely to his legs, and tied round his ankles with black ribbons,) silk stockings, and shoes with glittering silver buckles. His white neckerchief was tied with great elegance, not a superfluous wrinkle being visible in it. His shirt-front of lace, had two handsome diamond pins, connected together by a little delicate gold chain, glistening in the midst of it. Then he had a white waistcoat edge, next a crimson one, and lastly a glorious sky-blue satin waistcoat, spangled all over with gold flowers inwrought—and across it hung his new gold watch-guard, and his silver guard for his eyeglass, producing an inconceivably fine effect. His coat was of a light brown, of exquisite cut, fitting him as closely as if he had been born in it, and with burnished brass buttons, of sugar-loaf shape. 'Twas padded also with great judgment, and really took off more of his round-shouldered awkwardness of figure than any coat he had ever worn before. Then he had a fine white pocket-handkerchief, soaked in lavender water; and immaculate white kid gloves. Thus habited, he stood before his glass, bowing fifty different times, and adjusting his expression to various elegant forms of address. He was particularly struck with the combined effect of the two curls of his hair towards each eye, and the hair underneath his chin curved upwards on each side of his mouth in complete symmetry. I have ascertained from Mr. Titmouse himself, that on this memorable occasion of his first introduction to NOBILITY, every item of dress and decoration was entirely new; and when at length his labors had been completed, he felt great composure of mind, and a consciousness of the decisive effect which he must needs produce upon those into whose presence he was so soon to be ushered. His "carriage" was presently announced; and after keeping it standing for a few minutes, (which he conceived to be usual with fine people,) he gently placed his hat upon his head; drew on one glove, took his little ebony cane in his hand; and, with a hurried inward prayer that he might be equal to the occasion, stepped forth from his apartment and passed on to the glass-coach. Such a brilliant little figure, I will take upon myself to say, had never before issued, nor will perhaps ever again issue, from the Cabbage-Stalk Hotel. The waiters whom he passed, inclined towards him with instinctive reverence. He was very fine, to be sure; but who could, they justly thought, be dressed too finely that had ten thousand a-year, and was gone to dine with a lord in Grosvenor Square?

Titmouse was soon on his way towards that at once desired and dreaded region. He gazed with a look of occasional pity and contempt, as he passed along, at the plebeian pedestrians, and the lines of shops on each side of the narrow streets, till increasing indications of superior modes of existence presented themselves; and then he began to feel not a little fidgety and nervous. The streets grew wider; the squares greater; hackney-coaches (unsightly objects!) became fewer and fewer, giving place to splendid vehicles—coaches, and chariots—with one, two, and even three footmen, in elegant liveries, clustering behind, with long canes, cockades, and shoulder-knots; crimson, blue, green, bear and tiger skin hammercloths, with burnished coronets and crests upon them; sleek coachmen with wigs and three-cornered hats, and horses that pawed the ground with very pride; ladies within, glistening in satin, lace, and jewels—their lords beside them, leaning back with countenances so stern and haughty; oh, by all that was grand and tremendous! Titmouse felt himself getting now within the very vortex of greatness and fashion, and experienced a frequent fluttering and catching of the breath, and a sense of indefinite distressing apprehension. He was, however, now in for it—and there was no retreat. As he neared Grosvenor Square, he heard, ever and anon, terrific thundering noises at the doors opposite which these splendid vehicles had drawn up—as if the impatient footmen were infuriated because the doors did not fly open of themselves, at the sound of the approaching carriage-wheels. At length he entered Grosvenor Square, that "pure empyrean" of earthly greatness. Carriages rolled calmly and haughtily past him, others dashed desperately in different directions. At each side of Lord Dreddlington's house, were carriages setting down with tremendous uproar. Mr. Titmouse felt his color going, and his heart began to beat much faster than usual. 'Twas quite in vain that he "hemmed" two or three times, by way of trying to reassure himself: he felt that his hour was come; and would have been glad, at the moment, of any decent excuse for driving off home again, and putting off the evil day a little longer. Opposite the dreaded door had now drawn up Mr. Titmouse's glass-coach; and the decent coachman—whose well-worn hat, and long, clean, but threadbare blue coat, and ancient-looking top-boots, bespoke their wearer's thriftiness—slowly alighting, threw the reins on his quiet horses' backs, and gave a modest rat-tat-tat-tat-tat at the door without ringing.

"What name shall I give, sir?" said he, returning to his coach, and letting down the loud clanking steps, with such a noise as seemed to indicate his desire to show the solid metal structure of them!

"Titmouse—Mr. Titmouse;" replied our friend, hurriedly, as the lofty door was thrown open by the corpulent porter; disclosing several footmen in light blue liveries, with silver shoulder-knots, and powdered heads, standing in the hall waiting for him.

"Mr. Titmouse!" exclaimed the coachman to the servants: then, having returned to the coach—"When shall I come back for you, sir?" he inquired of his flustered fare.

"D— me, sir—don't bother me," faltered Titmouse, quitting the vehicle with great trepidation: and the next moment he was in the hands of the Philistines—the hall door was closed upon him. All his presence of mind had evaporated; the excellent lessons given him by Mr. Gammon had disappeared like breath from the surface of a mirror. Though Lord Dreddlington's servants had never before seen in the house so strange an object as poor little Titmouse, they were of far too highly polished manners to appear to notice anything unusual. They silently motioned him up-stairs with a bland courteous air, he carrying his little agate-headed cane in one hand, and his new hat in the other. A gentlemanly person in a full black dress suit, opened the drawing-room door for him, with an elegant inclination, which Titmouse very gracefully returned. A faint mist seemed to be in the drawing-room for a second or two, during which Titmouse heard his name gently whispered by the gentleman who had introduced him; quickly clearing away, however, he beheld, at the upper end, but two figures, that of an old gentleman, and a young lady—they were, in fact, the Earl of Dreddlington and Lady Cecilia. Now—if truth must be told—that great man had not been a whit behindhand, in the matter of dress, with the little creature now trembling before him; being, in truth, full as anxious to make an effective first appearance in the eyes of Mr. Titmouse, as he in those of the Earl of Dreddlington. And each had, in his way, completely succeeded. There was little or no substantial difference between them. The Right Honorable the Earl of Dreddlington was an old experienced fool, and Tittlebat Titmouse a young inexperienced one. They were the same species of plant, but had grown in different soils. The one had had to struggle through a neglected existence by the dusty, hard road-side of life; the other had had all the advantage of hothouse cultivation—its roots striking deep into, and thriving upon, the rich manure of sycophancy and adulation!—We have seen how anxious was our little friend to appear as became the occasion, before his great kinsman; who in his turn had several times during the day exulted secretly in the anticipation of the impression which must be produced upon the mind of Titmouse by the sudden display, in the earl's person, of the sublimest distinctions which society can bestow, short of royalty. It had once or twice occurred to the earl, whether he could find any fair excuse for appearing in his full general's uniform; but on maturer reflection, governed by that simplicity and severity of taste which ever distinguished him, he had abandoned that idea, and appeared in a plain blue coat, white waistcoat, and black knee-breeches. But on his left breast glittered one or two foreign orders, and across his waistcoat was the broad red ribbon of the Bath. His hair was white and fine; his cold blue eye and haughty lip gave him an expression of severe dignity: and he stood erect as an arrow. Lady Cecilia reclined on the sofa, with an air of languor and ennui which had become habitual to her; and was dressed in glistening white satin, with a necklace of large and very beautiful pearls. The earl was standing in an attitude of easy grace to receive his guest, as to whose personal appearance, by the way, he was quite in the dark—Mr. Titmouse might be a great or a little man, and forward or bashful; and require a corresponding demeanor and address on the part of the earl. "Gracious Powers!" he involuntarily exclaimed to himself, the instant his eye caught sight of Titmouse, who approached slowly, making profound and formal obeisances. The earl stood rooted to the spot which he had occupied when Titmouse entered. If his servants had turned an ape into the drawing-room, his Lordship could scarcely have felt or exhibited greater amazement than he now experienced, for a moment. "Ah, Heavens!" thought he, "what a fool have we here? what creature is this?" Then it flashed across his mind;—"May this be the future Lord Drelincourt?" He was on the point of recoiling from his suddenly-discovered kinsman in dismay, (as for Lady Cecilia, she gazed at him, through her glass, in silent horror, after a faint exclamation, on his first becoming visible, of "Gracious! Papa!") when his habitual self-command came to his assistance; and, advancing very slowly a step or two towards Titmouse—who, after a hurried glance around him, saw no place to deposit his hat and cane upon except the floor, on which he accordingly dropped them—the earl extended his hand, slightly compressed the tips of Titmouse's fingers, and bowed courteously, but with infinite concern in his features.