rule is the same where it is the person's own signature that is forged. That is to say, one who pays a note or other obligation purporting to bear his own signature, in the belief that it is genuine, though the signature is really a forgery, may recover back what he has paid, provided he acts without unnecessary delay and provided no rights of third persons have intervened.58 On similar principles, one who accepts counterfeit money in payment of a debt, or as the price of property sold, supposing it to be good, may rescind and recover, but only in case he acts promptly on discovering the fraud.59 Furthermore, a person whose name is forged to a deed, a note, or other written instrument, may maintain a bill in equity to have it surrendered and canceled, or for a decree pronouncing the instrument null and void and releasing him from all liability thereon. And a similar action is maintainable, at least in respect to a forged deed, under those provisions of the codes which declare that a written instrument in respect to which there is a reasonable apprehension that, if left outstanding, it may cause serious injury to a person against whom it is void or voidable, may be so adjudged on his application and ordered to be delivered up or canceled. And the fact that the purported maker of a forged instrument could defend against it at law, if the holder should sue on it, is not regarded as such an “adequate remedy" as would oust the jurisdiction of a court of equity.62 Nor is the case of relief against a forged

Gurney v. Womersley, 4 El. & Bl. 133; Furgerson v. Staples, 82 Me. 159, 19 Atl. 158, 17 Am. St. Rep. 470; Allen v. Sharpe, 37 Ind. 73, 10 Am. Rep. 80; Carpenter v. Northborough Nat. Bank, 123 Mass. 69; Brewster v. Burnett, 125 Mass. 68, 28 Am. Rep. 203; Eagle Bank v. Smith, 5 Conn. 71, 13 Am. Dec. 37; Emerine v. O'Brien, 36 Ohio St. 491; Goodrich v. Tracy, 43 Vt. 314, 5 Am. Rep. 281. See Costelo v. Barnard, 190 Mass. 260, 76 N. E. 599, 3 L. R. A. (N. S.) 212, 112 Am. St. Rep. 328; Commercial Nat. Bank v. First Nat. Bank, 97 Tex. 536, 80 S. W. 601, 104 Am. St. Rep. 879.

58 Welch v. Goodwin, 123 Mass. 77, 25 Am. Rep. 24; Wilkinson v. Johnson, 3 Barn. & C. 428; Ross v. Terry, 63 N. Y. 613.

59 McDonald v. Allen, 8 Baxt. (Tenn.) 446; Atwood v. Cornwall, 28 Mich. 336, 15 Am. Rep. 219; Wingate v. Neidlinger, 50 Ind. 520. 60 Huston v. Roosa, 43 Ind. 517; Huston v. Schindler, 46 Ind. 38; Hardy v. Brier, 91 Ind. 91.

61 Angus v. Craven, 132 Cal. 691, 64 Pac. 1091.

62 Hardy v. Brier, 91 Ind. 91. So, a federal court of equity has ju

deed taken out of the jurisdiction of equity by the fact that the deed is absolutely void, nor is it necessary, before bringing such a suit, that the legal owner should establish his title and obtain possession of the land by ejectment or other proceeding at law.63 And it is no obstacle to the maintenance of such a proceeding that the defendant cannot be compelled to make any answer which would tend to criminate himself. And it cannot be properly pleaded as a defense to an action to cancel a deed and its record as a forgery, that the plaintiff held title to the land in trust for the defendant, in that the defendant paid the purchase money and took title in plaintiff's name as a matter of convenience."5

It is further to be observed that, within the meaning of these rules, an instrument may be a forgery, though the signature to it is genuine. This doctrine was applied in a case in Michigan where the owner of property, upon executing a lease of it, which he had read and which correctly expressed his intentions, was tricked into signing another paper, which was represented to him as a duplicate of the lease, but which was in reality a deed of conveyance of the land, the date of which had been altered so as to make it appear to have been given several weeks later than the actual date of execution."

The rules stated in this section are applied not only to the case of fraud perpetrated by the forgery of deeds and other conveyances, but to the case of patents to land issued by risdiction of a suit for the cancellation of a forged note, brought by the purported maker against the payee, who is alleged to be asserting the validity of the note and attempting to negotiate the same, where, under the state statute, an action to recover on the note would not be barred for more than eleven years, as the complainant's remedy at law in such a case, by defending against the note when sued on it, would not be as practical and efficient as that in equity, and therefore not adequate and complete. Schmidt v. West (C. C.) 104 Fed. 272.

63 Bunce v. Gallagher, 5 Blatchf. 481, Fed. Cas. No. 2,133; Hoopes v. Devaughn, 43 W. Va. 447, 27 S. E. 251.

64 Singery v. Attorney General, 2 Har. & J. (Md.) 487.

65 Mitchell v. Mitchell, 41 Colo. 72, 91 Pac. 1103.

66 McGinn v. Tobey, 62 Mich. 252, 28 N. W. 818, 4 Am. St. Rep.

67 James v. City Investing Co. (C. C.) 188 Fed. 513; Cutler v. Fitz

68

the General Land Office to fictitious grantees on forged and fraudulent homestead applications and proofs, to forged mortgages or deeds of trust," or assignments of such securities, and to spurious promissory notes,1 and bail or replevin bonds.72

70

The effect of a rescission for forgery is to annul the entire transaction and to establish the invalidity of the false instrument. Thus, in a case in New York, a certified check was given to one of two partners for the sale and assignment of certain accounts due to the firm, but after payment of the check, the other partner asserted' that the firm's indorsement was a forgery, whereupon the amount paid thereon was refunded and the check returned to the partner who originally held it, and the accounts referred to were collected by the firm. It was held that this constituted a rescission of the contract of sale, so that the partner holding the check, or his transferee with notice, could not collect it from the bank on which it was drawn.73

The usual rule applicable to one seeking to rescind a contract and recover what he has paid or parted with is that he must also restore what he has received, except in cases. where the thing received is absolutely worthless. This applies in the case of a forgery. In the case of negotiable paper, for instance, if any of the parties to it are legally liable, though some of the purported signatures or indorsements are forgeries, the holder must surrender it up, as a condition to his own recovery; but he will not be required to do so if the only signature is a forgery, or if the indorsement is forged and the maker is insolvent, especially if possession

gibbons, 148 Cal. 562, 83 Pac. 1075; Stafford v. Stafford, 1 N. J. Eq. 525. See Green v. Brown (Miss.) 34 South. 147. And compare Boardman v. Jackson, 119 Mass. 161, as to the adequacy of the remedy at law.

68 United States v. McLeod (C. C.) 174 Fed. 508.

69 Ehrler v. Braun, 22 Ill. App. 391, affirmed 120 Ill. 503, 12 N. E. 996; Helm v. Lynchburg Trust & Sav. Bank, 106 Va. 603, 56 S. E. 598.

70 Nahe v. Bauer, 141 App. Div. 115, 125 N. Y. Supp. 592.

71 Miller v. Dill, 149 Ind. 326, 49 N. E. 272.

72 Patterson v. Smith, 4 Dana (Ky.) 153.

73 Silverman v. National Butchers' & Drovers' Bank, 50 Misc. Rep. 169, 98 N. Y. Supp. 209.

of the paper may be necessary to enable him to make out his case against a third person."4

76

§ 26. Fraudulent Alteration of Instruments and Additions Thereto.-The alteration of a written instrument after its execution and delivery, whether by erasure or addition or both, when done without authority and for the purpose of gaining some benefit or advantage surreptitiously, or placing the maker or grantor in a less advantageous position and one which he never agreed to assume, is a form of fraud which will justify the rescission of the transaction and the maintenance of a proceeding in equity for the surrender and cancellation of the instrument.75 This rule has been applied in a case where the signature of the grantor to a blank deed was procured by false representations, and the deed was subsequently filled out by the grantee with a description of lands not sold, and in a case where a deed of trust was fraudulently altered after its delivery by incorporating in it additional property not intended to be mortgaged," and in a case where property was conveyed to a certain person in trust, and he was described in the deed as trustee, and he afterwards erased the word "trustee," and borrowed money on the property and conveyed away the reversion to a third person.78 So, in another case, a grantor executed a deed purporting to be in consideration of the payment of a certain sum in cash. The grantee obtained possession of the deed on a pretext, and at the same time executed and delivered a writing to the grantor, reciting the purchase and the execution of the deed, and agreeing that if the consideration was not paid in three days the deed should

74 Cornelius v. Lincoln Nat. Bank, 15 Pa. Super. Ct. 82; Brewster v. Burnett, 125 Mass. 68, 28 Am. Rep. 203; Smith v. McNair, 19 Kan. 330, 27 Am. Rep. 117.

75 Gregory v. Howell, 118 Iowa, 26, 91 N. W. 778; Putnam v. Clark, 33 N. J. Eq. 338; Hampton v. Mayes, 3 Ind. T. 65, 53 S. W. 483; Kennedy v. Kennedy, 194 Ill. 346, 62 N. E. 797. Compare Wilson v. Miller, 143 Ala. 264, 39 South. 178, 111 Am. St. Rep. 42, 5 Ann. Cas. 724.

76 Vica Valley & C. R. Co. v. Mansfield, 84 Cal. 560, 24 Pac. 145. 77 Merchants' & Farmers' Bank v. Dent, 102 Miss. 455, 59 South. 805.

78 Flitcraft v. Commonwealth Title Ins. & Trust Co., 211 Pa. 114, 60 Atl. 557.

be void, but otherwise to be in full effect. The grantee also got this writing into his possession and, without authority, altered it so that it read "fifteen" days instead of "three" days, and on the same day the deed was executed he conveyed the land to a third person. Both deeds were placed on record, but no part of the purchase money was ever paid to the grantor. It was held that both deeds were fraudulent as against him.79

On the same principle, where a deed is completed except for the name of the grantee, which is left blank, and is executed by the grantor, and in that condition is placed in escrow or placed in the hands of an agent, and the blank is filled in, without authority, with the name of a grantee to whom the owner did not intend to convey, or whom he is not willing to accept as a purchaser, it is a fraudulent alteration which will support an action for the cancellation of the deed.80

§ 27. Fraud in Obtaining Possession of Deed. Where the grantee in a deed obtains possession of it by any furtive or surreptitious means, when it was not intended to be delivered to him, or not to be delivered except upon the performance of conditions with which he has not complied, it is a fraud cognizable in equity, and the instrument may be ordered surrendered up or canceled.81 This is the case, for example, where the grantee secretly or fraudulently abstracts the deed from the place where the grantor has put it for safe-keeping,82 or without his permission takes it up from the table where it is lying and carries it off.83 So where the grantor, wishing to retain the ownership and

79 O'Connor v. O'Connor, 45 W. Va. 354, 32 S. E. 276.

80 Maclellan v. Seim, 57 Kan. 471, 46 Pac. 959; Mitchell v. Squire, 128 Iowa, 269, 103 N. W. 783; Whitaker v. Miller, 83 Ill. 381; Prindiville v. Curran, 132 Ill. App. 162; Wiggenhorn v. Daniels, 149 Mo. 160, 50 S. W. 807.

81 Gragg v. Maynard, 164 Mich. 535, 129 N. W. 723; Cowart v. Aycock, 139 Ga. 432, 77 S. E. 382; Bowers v. Cottrell, 15 Idaho, 221, 96 Pac. 936; Ashley v. Denton, 1 Litt. (Ky.) 86.

82 Cribbs v. Walker, 74 Ark. 104, 85 S. W. 244; Garner v. Risinger, 35 Tex. Civ. App. 378, 81 S. W. 343; Arnold's Heirs v. Arnold, 26 Ky. Law Rep. 884, 82 S. W. 606.

83 Pierson v. Fisher, 48 Or. 223, 85 Pac. 621.