This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
An alteration made, after delivery, by consent of all the parties to the conveyance, is binding and effective if it is followed by a new delivery of the instrument,24 in so far as no proprietary rights vested in the grantee by the conveyance as it originally stood are divested by such alteration,25 and subject to the qualification that the subsequent record of the conveyance does not affect an innocent third person with notice of the alteration unless it was acknowledged after the alteration.26 The new delivery, in such case, would ordinarily be inferred,
21. Pollock, Contracts, (Willis-ton's Edition) 729, note.
22. Post, Sec. 461.
23. Sheppard's Touchstone, 55; Miller v. Williams, 27 Colo. 34, 59 Pac. 740; Tharp v. Jamison, 154 Iowa 77, 39 L. R. A. (N. S.) 100, 134 N. W. 583; Coney v. Laird, 153 Mo. 408. 55 S. W. 96; Reformed Dutch Church of North Branch v. Ten Eyck, 25 N. J. Law, 40; Wetherington v. Williams, 134 N. C. 276, 46 S. B. 728; Duncan v. Hodges, 4 Mc-cord (S. C.) 239, 17 Am. Dec. 734.
24. Malarin v. United States, 1 Wall. (U. S.) 282, 17 L. Ed. 594; Stiles v. Prohst, 69 III. 382; Abbott v. Ahhott, 189 111.
488, 82 Am. St. Rep. 470, 59 N. E. 958; Tucker v. Alien, 16 Kan. 312; Bassett v. Bassett, 55 Me. 127; Byers v. Mcclanahan, 6 Gill & J. (Md.) 250; Burns v. Lynde, 6 Allen (Mass.) 305; Fitzpatrick v. Fitzpatrick, 6 R. I. 64. 75 Am. Dec. 681.
25. See post, Sec. 465.
26. Moelle v. Sherwood, 148 U. S. 21, 37 L. Ed. 350; Sharpe v. Orme, 61 Ala. 263; Webb v. Mullins. 78 Ala. Ill; Wagle v. Towa State Bank, 175 Iowa 92, 156 N. W. 991; Collin v. Collins. 51 Miss. 311, 24 Am. Rep. 632; See Coit v. Starkweather, 8 Conn. 280. Waldron v. Waller. 65 W. Va.605.32 L. R. A. (N. S.) 285, 64 S. E. 964.
It appears, from the fact that the grantor makes or approves the alteration, such fact, taken in connection with the fact of the prior delivery, serving to show an intention that the instrument shall be operative as altered.27 There is, however, considerable difficulty in inferring a new delivery when the grantor merely consents to the alteration, which is made out of his presence, especially if he does nothing thereafter to indicate his intention that the instrument, as altered, shall operate as his act and deed.28
An alteration made after the delivery of the conveyance is absolutely nugatory to divest property rights vested in the grantee by the conveyance.29 The operation of the instrument as a conveyance becomes, after delivery, a thing of the past, and the fact that the instrument is then altered, or even that it is destroyed,30
27. Speake v. United States, 9. Crouch (U. S.) 28, 3 L. Ed. 645; Woodbury v. Allegheny & K. R. Co., 72 Fed. 371; Pretty-man v. Goodrich. 23 111. 330; Tucker v. Allen, 16 Kan. 312; Coney v. Laird, 153 Mo. 408. 55 S. W. 96; Wooley v. Constant, 4 Johns. (N. Y.) 54, 4 Am. Dec. 246; Martin v. Buffaioe, 121 N. C. 34, 27 S. E. 995; Barrington v. Branch, 14 Serg. & R. (Pa.) 405; Bryant v. Bank of Charleston, 107 Tenn. 560, 64 S, W. 895.
28. See Davenport v. Sleight, 19 N. C. 381; Burns v. Lynde, 6 Allen (Mass.) 305. Bowen, L. J., in Powell v. London & Provincial Bank  2 Ch. at p. 563; Martin v. Hanning, 26 Up. Can. Q. B. 80.
29. Doe d. Lewis v. Bingham, 4 Barn. & Aid. 672; Alabama State Land Co. v. Thompson, 104 Ala. 570, 53 Am. St. Rep.
80, 16 So. 440; Faulkner v. Feazel, 113 Ark. 289, 168 S. W. 568; Gibbs v. Potter, 166 Ind. 471, 77 N.' E. 942; Hollings-worth v. Holbrook, 80 Iowa, 151, 20 Am. St. Rep. 411, 45 N. W. 561; Hunt v. Nance, 122 Ky. 274, 92 S. W. 6; Chessman v. Whitte-more, 23 Pick. (Mass.) 231; Robbins v. Hobart, 133 Minn. 49, 157 N. W. 908; Collins v. Collins, 51 Miss. 311, 24 Am. Rep. 662; Woods v. Hilderbrand, 46 Mo. 284, 2 Am. Rep. 513; Jackson v. Jacoby, 9 Cow. (N. Y.) 125; Rifener v. Bowman, 53 Pa. St. 313; Booker v. Stivender, 13 Rich. (S. C.) 85: Stanley v. Epperson, 45 Tex. 645; North v. Henneberry, 44 Wis. 306.
30. See the full discussion of the whole subject in 18 Harv. Law Rev. at pp. 105, 165, article by Professor Samuel Williston. See also post Sec. 465.
The question of the validity cannot well affect the property rights which it has previously vested in the grantee. In former times a distinction was said to exist in this regard between things which lay in grant and those which lay in livery, a material alteration or a cancellation of the conveyance being regarded as effective to divest the grantee's title in the latter though not in the former case.31 But such a distinction is no longer recognized in England,32 and while it has been referred to in terms of approval in two states,33 it appears to be generally ignored. But though an alteration after delivery does not operate to divest, in favor of the grantor, property rights vested in the grantee by the conveyance, it has the effect, in a number of jurisdictions, at least if fraudulently made, of rendering the instrument inadmissible in evidence, and of thus indirectly disabling him from asserting his rights in the land.34 Though the validity of a conveyance is as such not usually affected by an alteration after delivery, any covenant or other contract contained in the instrument, since it is executory in its nature, La invalidated by a material alteration, erasure, or caneelof an attempt to change the name of the grantee after delivery is referred to ante, Sec. 434 notes 81-86.
31. Miller v. Mainvaring, Cro. Car. 397; Gilbert. Evidence (6th Ed.) p. 94-96.
32. Bolton v. Bishop of Carlisle, 2 H. Bl. 259; Norton, Deeds, 29.
33. Lewis v. Payne, 8 Cow. (N. Y.) 71, 18 Am. Dec. 427; Wallace v. Harmstad, 44 Pa. St. 492.
34. Miller v. Luco, 80 Cal. 257, 22 Pac. 195 (statute); Rob-bins v. Magee, 76 Ind. 381; Babb v. Clemson, 10 Serg. & R. 419; Plitcraft v. Commonwealth Title Ins. & Trust Co., 211 Pa. 114,
Lation, made by the obligee without the consent of the obligor.35 A covenant or contract in an instrument of conveyance stands in this regard in the same position as a covenant or contract in any other instrument.
The mortgage depends on the correctness of the theory that the rights of one who has a mortgage lien are purely executory, and this is perhaps open to question. The execution of the mortgage, even in states where it does not pass the legal title to the land, vests in the mortgagee a lien, involving a power to effect the sale of the land, in case of default in the obligation secured, and such lien and power cannot, it would seem, be divested by a subsequent alteration of the mortgage.39 In any state, however, in which a conveyance is, after alteration, inadmissible in evidence, the mortgage would be subject to a like rule, so as to be practically nugatory as a result of the alteration, although in theory the lien still exists.
60 Atl. 557; Collins v. Ball, 82 Tex. 259, 27 Am. St. Rep. 877.
17 S. W. 614; Bliss v. Mclntyre,
18 Vt. 466. And see cases cited post. Sec. 465. Contra Alabama State Land Co. v. Thompson, 104 Ala. 570, 53 Am. St. Rep. 80, 16 So. 440; Burgess v. Blake, 128 Ala. 105, 86 Am. St. Rep. 78, 28 So. 963. And see Woods v. Hilderbrand, 46 Mo. 284, 2 Am. Rep. 513.
As to whether such an alteration should operate to exclude the instrument when offered in favor of a subsequent purchaser or creditor, see Pollock, Contracts, (Williston's Edition), p. 849.
An alteration in a mortgage instrument, made by the mortgagee after its delivery, without the consent of the mortgagor, has been decided, in a number of cases, to invalidate the mortgage.36 These decisions are based on the theory that since the mortgagee has a lien only, his rights are executory in character, and consequently the rule which makes alterations in a conveyance ineffective to divest rights once vested by the conveyance has no application. On the other hand in one state, in which the mortgage vests the legal title in the mortgagee, it has been held that, by reason of the rule referred to, a foreclosure proceeding based on such title may be maintained regardless of the alteration.37-38 The correctness of the decisions that an alteration invalidates
35. Ward v. Lumley, 5 Hurlst. & N. 656; Agricultural Cattle Ins. Co. v. Fitzgerald, 16 Q. B. 432; Alabama State Land Co. v. Thompson, 104 Ala. 570, 53 Am. St. Rep. 80, 16 So. 440; Hol-lingsworth v. Holbrook, 80 Iowa 151, 20 Am. St. Rep. 411, 45 N. W. 561; Chessman v. Whitte-more, 23 Pick. (Mass.) 231; Lewis v. Payn, 8 Cow. (N. Y.) 71, 18 Am. Dec. 427; Withers v. Atkinson, 1 Watts (Pa.) 236; Wallace v. Harmstad, 15 Pa. St. 462, 53 Am. Dec. 603; Churchill v. Capen, 84 Vt. 104, 78 Atl. 734; Waldron v. Waller, 65 W. Va. 605, 32 L. R. A. (N. S.) 284, 64 S. E. 964; North v. Henneberry, 44 Wis. 306
36. Murphy v. Purifoy, 52 Ga. 480; Cutter v. Rose, 35 Iowa 456; Johnson v. Moore, 33 Kan. 90, 5 Pac. 406; Russell v. Reed,
36 Minn. 376, 31 N. W. 452; Merchants' & Farmers' Bank v. Dent, 102 Miss. 455, 59 So. 805; Powell v. Banks, 146 Mo. 620, 48 S. W. 664; Barnhart v. Little, (Mo.), 185 S. W. 174; Kime v. Jesse, 52 Neb. 606, 72 N. W. 1050; Marcy v. Dunlap, 5 Lans. (N. Y.) 365; Mclntyre v. Velte, 153 Pa. St. 350, 25 Atl. 739; Powell v. Pearlstine, 43 S. C. 403, 21 S. E. 328; Bowser v. Cole, 74 Tex. 222, 11 S, W. 1131.
37-38. Kendall v. Kendall, 12 Allen (Mass.) 92. And see Rodriguez v. Haynes, 76 Tex. 225, 13 S. W. 296. Contra, Powell v. Banks, 146 Mo. 620, 48 S. W. 664; Mclntyre v. Velte, 153 Pa. 350, 25 Atl. 739. And see Green v. Sneed, 101 Ala. 205, 46 Am. St. Rep. 119, 13 So. 277 a case of chattel mortgage.