A COMMON LAW PRINCIPLE: NO RIGHT TO MATERIALLY ALTER A DEED

Centuries of Law to support the fact a deed cannot be altered (without expressed written consent) after it has been executed. 

A regular question that arises in regard to the industrial scale and multi-levelled Great British Mortgage Swindle is what right does the conveyancing solicitor have to add the date after the deed of mortgage has been executed?

The answer is none whatsoever.

There are countless common sense and  principles of law that apply to this matter.

The first form of a mortgage in this country was the shetar that was granted by the Iceni peoples of East Anglia to the Jewish money lenders over 1000 years ago:

The Jews, whom the Normans brought to England . . . [or who financed and followed the invasion – Ed.] brought a refined system of commercial law: their own form of commerce and a system of rules to facilitate and govern it.

 

Several elements of historical Jewish legal practice have been integrated into the English legal system. Notable among these is the written credit agreement—shetar, or starr, as it appears in English documents.

 

The basis of the shetar, or “Jewish Gage,” was a lien on all property (including realty) that has been traced as a source of the modern mortgage. Under Jewish law, the shetar permitted a creditor to proceed against all the goods and land of the defaulting debtor. . . Jewish law that debts could be recovered against a loan secured by “all property, movable and immovable” was a weapon of socio-economic change that tore the fabric of feudal society and established the power of liquid wealth in place of land holding. . . . Jewish Law, wherein personal debt superseded rights in real property had become the law of the land.”

 

“Foootnote 11: H.C. Richardson, The English Jewry Under Angevin Kings 94 (1960) (Jews liquidation of land obligations broke down rigidity of feudal land tenure and facilitated transfer of land to new capitalist class). Footnote 15: CF. 1 F. Pollock and F.W. Maitland, supra note 3 at 469… (alien to English law for creditor not in possession of land to have rights in it).”

 

“The Shetar’s Effect on English Law”, The Georgetown Law Journal; V. 71, P 1179 – 1200); Judith A. Shapiro.

As invidious as it may well have been, the king of the Iceni could not have granted a charge over his peoples’ land were they not actually in possession of said territories. 

That is common sense.  

It’s also a point that was made as recently as 2014 in the Supreme Court:

The purchaser was not in a position either at the date of exchange of contracts or at any time up until completion of the purchase to confer equitable propriety,” and,

 

“This case has been decided on the simple basis that the purchaser of land cannot create a propriety interest in the land, which is capable of being an overriding interest, until his contract has been completed.”

Scott v Southern Pacific Mortgages & Others [2014] UKSC 52.

 

So, what is actually going on when a conveyancing solicitor instructs an individual to execute a mortgage deed over a property that is not his and to leave the date blank (for him to fill in later)?

Firstly, he is giving illegal advice, as per common sense, the Law of Mortgages and the above Supreme Court ruling.  Any and all of which renders the deed fraudulent. 

Secondly, when he alters the deed post signing, he is engaging in an act of forgery. There is no law that permits him to do this. How could there be? What kind of legal system would accept that documents, financial instruments, wills, deeds, affidavits et al could be materially altered after they have been executed/signed without the consent of the signatory?

Were that to be allowed, we would be awash in an ocean of nonsense and illogicality. That is why the Supreme Court had to make such a conclusion. 

It may be reasonably argued that the current rigged game known as Her Majesties Courts and Tribunals Service operates in exactly that way – nonsense and illogicality rule throughout, particularly in regard to the banks and the special treatment they get when bringing a possession claim, even when presented with the facts. 

And that is putting it mildly.  

The following is taken from the research of  Darren Purcell to whom it must be duly credited, with thanks. 

“The rule in Pigot’s Case 1614” – Any material alteration to a deed after execution without the consent of all parties renders the deed void. This is a rule of law that has stood for 400 years without being superseded, it has had some minor alterations eg. it must now be a material alteration but this is still good law.”

The case came before the eminent 17th-century English jurist, Lord Coke.

 

The jury had found as a fact that the amendments (a) were made by a stranger, and (b) that they did so without the permission of Winchcombe. The Court further held that the amendment was not a material one.^[5]

 

Coke held:

“when any deed is altered in a point material, by the plaintiff himself, or by any stranger, without the privity of the obligee, be it by interlineation, addition, rasing, or by drawing of a pen through a line, or through the midst of any material word, that the deed thereby becomes void.”

“Further, the Forgery Act 1861 states, Section 34 “Acknowledging recognizance, bail, cognovit, &c. in the name of another.”

Whosoever, without lawful authority or excuse (the proof whereof shall lie on the party accused), shall in the name of any other person acknowledge any recognizance or bail, or any cognovit, actionem, or judgment, or any deed or other instrument, before any court, judge, or other person lawfully authorized in that behalf, shall be guilty of felony, and being convicted thereof shall be liable . . . F1 to be kept in penal servitude for any term not exceeding seven years.”

Darren continues,  “All references I have come across in relation to alteration of deeds is that they are not allowed without consent, the rules are as set out in Pigots case 1614 (above), there is a presumption of the court that alterations to deeds occurred before delivery and vice versa with wills. The presumption needs to be rebutted.”

 https://www.gov.uk/…/practice-guide-68-amending-deeds  “… even in here its saying “all parties” must consent and then after registration a deed of variation or deed of rectification is needed to alter a deed.”

“Forgery and Counterfeiting act 1981 section 9, check out s.9(2) false if altered 9 Meaning of “false” and “making”.

“(1) An instrument is false for the purposes of this Part of this Act—

(a) if it purports to have been made in the form in which it is made by a person who did not in fact make it in that form; or

(b) if it purports to have been made in the form in which it is made on the authority of a person who did not in fact authorise its making in that form; or

(c) if it purports to have been made in the terms in which it is made by a person who did not in fact make it in those terms; or

(d) if it purports to have been made in the terms in which it is made on the authority of a person who did not in fact authorise its making in those terms.

(2) A person is to be treated for the purposes of this Part of this Act as making a false instrument if he alters an instrument so as to make it false in any respect (whether or not it is false in some other respect apart from that alteration).”

 

Lord Denning put it thus:

What is the common element in all these cases? It is, I think, best expressed in the definition given by East in his Pleas of the Crown, vol 2, page 822. He treats the subject, I think, better than any writer before or since:

 

‘To forge (a metaphorical expression borrowed from the occupation of the smith) means, properly speaking, no more than to make or form: but in our law it is always taken in an evil sense; and therefore Forgery at common law denotes a false making (which includes every alteration of or addition to a true instrument), a making malo animo, of any written instrument for the purpose of fraud and deceit. This definition results from all the authorities ancient and modern taken together’.”

“Furthermore, the Council of Mortgage Lenders Handbook Section 5.18.1 clearly states:

[…] the Mortgage deed must not be amended.”

Chitty on contacts 31st edition states,

“Alteration or Cancellation of a Written Instrument”

 

“25-020 Material Alteration. If a promisee, without the consent of the promisor, deliberately makes a material alteration in a specialty or other instrument containing words of contract, this will discharge the promisor from all liability thereon, even though the original words of the instrument are still legible.

 

The rationale for the rule is two-fold. First: “no man shall be permitted to take the chance at committing fraud, without running any risk of losing by the event, when it is detected” and, second, that the effect of the alteration renders the deed or instrument “no longer the deed or instrument of the party charged”.

 

Conclusion

The conveyancing solicitor has no right, in reason and at law, to materially alter a mortgage deed. Adding a date is included in that. It is only added to give the appearance that the law of mortgages has been complied with. 

He adds it because were it not dated, it would not be accepted by the Land Registry for the purpose of registration.

The conveyancing solicitor thus induces the individual to sign a legal document in which he falsely claims, at the time of signing, that the property is his. In the majority of such ‘registrable dispositions’,  and they run into the millions,  the deed falsely states that he, as the “beneficial owner” agrees in writing that moneys were received from the bank (which makes it a false receipt), that he is the “borrower” and that he therefore has the legal standing to secure the (non-existent) “loan” against his property. None of which is true. 

The Great British Mortgage Swindle is a fraud at every level and the Deed of Mortgage is a lie put to paper. 

Given the foregoing, those conveyancing solicitors who are paying attention may well be experiencing  a creeping sense of horror at the realisation that the common practice of the industry is nothing less than fraud. 

As ever, many thanks to David R for his continued support of this site and to Michael O’Bernicia for his unrelenting tenacity. 

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