Breyer v. Gale

• Decision Date: 21 December 1925
• Docket Number: No. 5000.,5000.
• Citation: 53 N.D. 439,207 N.W. 46
• Parties: BREYER et al. v. GALE et al.
• Court: North Dakota Supreme Court

53 N.D. 439

207 N.W. 46

BREYER et al.

v.GALE et al.

No. 5000.

Supreme Court of North Dakota.

Nov. 2, 1925.

Rehearing Denied Dec. 21, 1925.

Syllabus by the Court.

A judgment docketed against A. N. Pearson does not afford constructive notice that it constitutes a lien upon the real property of Nels Pearson or Nels Pehrson or Andrew Pehrson.

Appeal from District Court, Cass County; A. T. Cole, Judge.

Action by Nick S. Breyer and another against J. H. Gale and others.Judgment for plaintiffs, and defendants appeal.Affirmed.Spalding & Shure and Francis J. Murphy, all of Fargo, for appellants.

Lovell & Horner, of Fargo, for respondents.

JOHNSON, J.

This is an action to determine adverse claims to real property.From a judgment in favor of the plaintiffs, defendants appeal and ask a trial de novo in this court.

The case of Gilbert v. Gale(N. D.)196 N. W. 314, involved a state of facts substantially identical in all material respects.For the sake of convenience, the salient facts may be recapitulated as follows: On December 5, 1908, the fee title to the land in controversy was vested, of record, in one Nels Pearson.On August 21, 1913, the defendants docketed a judgment against one A. N. Pearson; on December 28, 1914, the property in controversy was distributed, by a final decree of the county court of Cass county in the estate of Nels Pehrson, to one Bengta Pehrson, widow; on August 6, 1917, the same property was again distributed by the county court of Cass county in the estate of Bengta Pehrson to various distributees, among whom was one Andrew Pehrson, as heirs at law of the said Bengta Pehrson; on March 12, 1920, the heirs at law aforesaid conveyed the premises to Nick S. Breyer, one of the plaintiffs herein; on January 5, 1921, Breyer sold the property under a contract for a deed to one Peterson; and in October, 1922, Peterson assigned his interest in the contract to the plaintiffLouis F. Gratias.

It is the contention of the plaintiffs, and was the conclusion of the trial court, that the record of the judgment, obtained by the defendants on August 21, 1913, against A. N. Pearson, did not afford constructive notice of the lien of such judgment to the plaintiffs as purchasers of the premises in controversy, in good faith and without actual knowledge.Whether the docketing of such judgment constitutes constructive notice in the circumstances is the principal question in this case.

Defendants contend strenuously that, the title to the property having at one time been vested in Nels Pearson, and probate proceedings having afterwards been had in the name of Nels Pehrson, it appears that the names were used interchangeably, and that it was therefore the duty of one searching the record to consider as possible or probable liens upon the property any judgment docketed against a person spelling his surname “Pearson.”We think that this contention cannot be sustained, in view of the prior decision of this court in the case of Turk v. Benson, 30 N. D. 200, 152 N. W. 354, L. R. A. 1915D, 1211, in which it was held that a judgment docketed against William J. Rideout did not afford constructive notice of a lien upon property owned by William G. Rideout.The plaintiff was required to search the record for liens upon the property of Nels Pearson; a judgment of record against A. N. Pearson would cast no duty upon him to make inquiry in order to ascertain whether the lien of that judgment was, in fact, a lien upon the property of Nels Pearson.

We are of the opinion that the doctrine of idem sonans has no application to the question before us.This is conceded by the appellant.We believe it is the contemplation of the recording statutes, with respect to docketing judgments, that the docket thereof shall impart notice to the eye and not to the ear, and that it is incumbent upon him who would obtain the benefit of the constructive notice imparted under the recording laws to see that his judgment is entered and docketed against the proper person and by his correct name.In the case of Schatz et al. v. Kintyre, Farmers' Co-operative Elevator Co.(N. D.)202 N. W. 855, this court quotes with approval from the Appeal of Heil, 40 Pa. 453, 80 Am. Dec. 590, as follows:

“Upon this second question no light is thrown by the fact that the name of the debtor, though spelled with different capitals, is the same in sound.The act of assembly, which requires that judgment dockets and indexes shall be kept, provides for notice to the eye, not to the ear.”

Other cases are cited, with quotations, in some instances, in the Schatz Case, which are more or less apt in the case at bar.We are of the opinion that the record of the judgment against A. N. Pearson did not afford constructive notice to the plaintiffs of the lien of such judgment upon the property of Nels Pearson or Nels Pehrson or Andrew Pehrson.

The judgment of the trial court is affirmed.

CHRISTIANSON, C. J., and BURKE, BIRDZELL, and NUESSLE, JJ., concur.

On Petition for Rehearing.

JOHNSON, J.

In a petition for a rehearing, appellants strenuously contend that in the opinion, as filed, this court has misapplied legal principles, and that the case of Turk v. Benson, 30 N. D. 200, 152 N. W. 354, L. R. A. 1915D, 1211, has no application.

It must not be overlooked that the question here is whether a judgment against A. N. Pearson affords constructive notice to one who takes from a person who transferred the premises in the name of Andrew Pehrson.The lien of the judgment is purely statutory.It does not rest on contract, in any sense, like the lien of a mortgage.

The trial court found that the plaintiffs had no notice of the fact that the judgment debtor, A. N. Pearson, and one of plaintiff's grantors, Andrew Pehrson(a remote grantor of plaintiff Gratias), was one and the same person.This finding has ample support in the testimony.The inquiry is reduced to the effect of the recording laws.The plaintiff, as the prospective purchaser, must be presumed to have investigated the title.He is charged with knowledge of every fact disclosed by the record, and of every fact which inquiry, suggested by the record, would have made known to him.The plaintiff is chargeable with notice of a judgment against A. N. Pearson, and that such judgment would be a lien against real property owned by him in the county where docketed.The property at one time was in the name of Nels Pearson, but the probate proceedings were concluded in the name of Nels Pehrson.Andrew Pehrson or A. N. Pearson was an heir of Nels Pearson or “Pehrson.”Can we say that the plaintiffs were chargeable with knowledge that their grantor, Andrew Pehrson, and the judgment debtor, A. N. Pearson, was one and the same person?We do not think so.The judgment did not disclose this fact, nor did it suggest an inquiry which, if pressed, would have resulted in knowledge of that fact.He might have examined the judgment roll and the evidence of the indebtedness, and not been further enlightened on the subject, because the note was executed by A. N. Pearson.In order to hold otherwise, we would have to impose on plaintiff the duty of supposing that his grantor, Andrew Pehrson, had a second name, and that the first initial, A., of the judgment debtor, A. N. Pearson, might stand for Andrew, although it may as well be the initial of any one of a multitude of proper names from Adam to Alexander, and that Pehrson and Pearson really was one and the same person.

The notice afforded through the entry and docketing of a judgment is purely theoretical and constructive; the statutory provisions in that behalf are for the benefit of the creditor; complying therewith is a duty which he must perform if he wishes to obtain the benefit of this statutory lien against all subsequentincumbrances, purchasers or creditors.The statutes are mandatory, and constructive notice of the lien of the judgment will not arise unless their provisions have been substantially complied with.

The purpose of the recording statutes governing the liens of judgments is to furnish evidence to any person searching the...