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The opinion of the court was delivered by

Williams, Ch. J.

In this case the court decided, upon the evidence, that the plaintiff was not entitled to recover. It appears to us, that the case should have been submitted to the jury; and, if the facts were as claimed by the plaintiff, he was entitled to recover. *469There was apparent, on the lease executed by the plaintiff to Johnson, a material alteration and erasure; by which the estate of Johnson was enlarged. The right of the plaintiff to re-enter was erased, and the situation of the grantor and grantee was materially changed. If this alteration and erasure were made by Johnson, under whom the defendants acted, the plaintiff had a right to recover; and whether it was so altered by him is a question which should have been submitted to the jury. •

The plaintiff claimed a right to re-enter, on being denied the rights secured to him by the stipulations in the lease. These rights were secured to him by that clause in the lease, which is erased. In this view, alone, it was important to have that fact passed upon by the jury.

But, moreover, if this erasure was made by Johnson, it destroyed all his future rights under that lease. And although it might not divest an estate already vested, and might not have operated on his acts committed before the alteration was made (questions, however, which are not now to be decided) in odium spoliatoris he must be considered as having destroyed the evidence of his title fraudulently and thereby lost all his subsequent claim under and by virtue of the same, either to retain the possession, or preclude the plaintiff from entering on the premises leased.

In the case of Chesley v. Frost, 1 N. H. 145, it was decided, that, if a grantee in possession fraudulently make a material alteration in a deed, he cannot avail himself of such deed in evidence, nor supply it by parol proof, — limiting its éffect prospectively, so as not to divest an estate already vested. In Withers v. Atkinson, 1 Watts 236, such an alteration was held to destroy the deed, as to the party altering it, and to deprive him of all benefit from the covenants, — treating it as in the case in New Hampshire. And in Lewis v. Paine, 8 Cow. 71, it was said, that, if a party have no other evidence but an altered deed, he cannot recover thereon, having by his own act destroyed the evidence of his demand. The principle recognized in these cases we think is correct, and would have had a decisive effect in this case against the defendants, if it had been established by the evidence.

Again, the plaintiff had a right to enter and take away the wood, if it was sold to him by Johnson, as he contended. If the plaintiff *470had a right to enter in consequence of Johnson having failed to perform the stipulations in the lease, as it apparently was before the alteration, or to take the wood, if it was sold to him, or if Johnson had destroyed the evidence, under which he first entered into possession, so that the defendants could not avail themselves of it, the defendants were trespassers in turning the plaintiff out of possession and fastening gates and doors against him. These facts could alone be found by the jury; and the court erred in deciding that the plaintiff was not entitled to recover, without submitting the question to the jury.

The judgment of the county court is therefore reversed.

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