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.[A] 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_.
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