Downer v. Bermingham

• Decision Date: 03 April 1922
• Docket Number: 10067.
• Citation: 71 Colo. 245,205 P. 948
• Parties: DOWNER v. BERMINGHAM.
• Court: Colorado Supreme Court

205 P. 948

71 Colo. 245

DOWNER v. BERMINGHAM.

No. 10067.

Supreme Court of Colorado, En Banc.

April 3, 1922

Error to District Court, City and County of Denver; Julian H Moore, Judge.

Replevin by Rose E. Bermingham against Frank M. Downer. From a judgment for plaintiff, defendant brings error.

Affirmed.

Charles E. Friend, of Denver, for plaintiff in error.

H. E Luthe, of Denver, for defendant in error.

ALLEN J.

This is an action in replevin. The plaintiff sues as mortgagee under a chattel mortgage of the property sought to be replevied and relies on the mortgage. The defendant is the ex officio sheriff of the city and county of Denver, but the action is defended for a judgment creditor, at whose instance the defendant levied execution against the property. There was a verdict and judgment for plaintiff, and defendant brings the cause here for review.

The plaintiff's chattel mortgage was recorded prior to the inception of the lien of the judgment creditor. The mortgage and the record thereof, gives the name of the mortgagor as 'Thomas F. Bermingham.' Defendant contends, in effect, that the mortgage is invalid, and its record is not constructive notice, as to him, because the real name of the mortgagor, being the same person as the judgment debtor, is 'Thomas F. Birmingham.' Defendant admits having knowledge of the record of the chattel mortgage in question after making an examination of the records of the county clerk and recorder, and there is no claim of having been misled by reason of the substitution of an 'e' for an 'i' in the mortgagor's name. There is a conflict in the evidence as to whether the second letter in the mortgagor's name is an 'e' or an 'i,' but this is not a material issue. 'Bermingham' and 'Birmingham,' from all that appears in the record, are one and the same name; but, if different names, then they must be regarded one and the same under the rule of idem sonans.

A record of a mortgage given by Thomas F. Bermingham is constructive notice of one given by Thomas F. Birmingham. A party does not have his record rendered a nullity simply because he, or another party to the instrument or proceeding, has misspelled a surname in some manner not clearly misleading. The validity of records and their effect as to giving constructive notice do not depend on accurate spelling. In Jenny v. Zehnder, 101 Pa. 296, the substitution of 't' for 'd' in Zehnder's surname was not...