Fincher v. Hanegan

• Decision Date: 19 May 1894
• Citation: 26 S.W. 821,59 Ark. 151
• Parties: FINCHER v. HANEGAN
• Court: Arkansas Supreme Court

26 S.W. 821

59 Ark. 151

FINCHER v. HANEGAN

Supreme Court of Arkansas

May 19, 1894

Appeal from Nevada Circuit Court, RUFUS D. HEARN, Judge.

Action by Hanegan against Fincher. The facts were as follows: In 1891 Henry M. Ward executed a mortgage to Hanegan of his crop of cotton for that year, and signed and acknowledged the same by the name of Henry N. Ward, which mortgage was at once duly recorded. Subsequently, Ward executed a second mortgage of the same crop to Fincher, and signed and acknowledged it correctly by his name, Henry M. Ward. The second mortgage was also duly recorded. Before taking his mortgage Fincher wrote to the recorder to know if there was any mortgage on record against Henry M. Ward for the year 1891, to which the latter replied that there was not. Fincher sold goods to Ward under his mortgage, and in the fall bought two bales of cotton from him, the proceeds of which were applied to his account. After Fincher had sold the cotton, he received a letter from Hanegan, notifying him that he held a mortgage on it. This was the first notice Fincher had of Hanegan's mortgage except the record of the same. After making personal demand of Fincher for the cotton, or its proceeds, Hanegan brought this action. It was proved that Ward's true name was Henry M. Ward; but that he was known to Hanegan as Henry Ward; that he was the only Henry Ward known in the county. The cause was tried by the court without a jury. Fincher asked the court to declare the law to be:

"That the middle Christian name, or initial of same, when signed as part of a name to an instrument required by law to be recorded, becomes, and is, as much the name, or part thereof as any other part."

"That in this case the record of the mortgage signed Henry N. Ward was no notice to defendant, who purchased the property in question from Henry M. Ward."

The court refused to make these declarations, or either of them and rendered judgment in favor of plaintiff for $ 74.39, the value of the cotton and interest. Defendant moved for a new trial. This being overruled, he excepted and appealed.

Judgment affirmed.

Hamby & White for appellant.

A middle Christian name or initial, when signed as part of a name to an instrument required by law to be recorded, becomes and is as much the name, or part thereof, as any other part. The record of a mortgage signed Henry N. Ward was no notice to defendant, who purchased from Henry M. Ward. As between mortgagor and mortgagee, "the law knows but one Christian name," and the mortgage signed Henry N. was good; but it was not notice to subsequent purchaser s from Henry M., and void against strangers. Definite description of the property mortgaged is essential as against strangers. So, we insist, a definite description and identification of the mortgagor is essential. 63 Ind. 576; 39 Ark. 394; 41 id. 70; 43 id. 350; 14 L. R. A. (N. C.), p. 393. The rule that "the law knows but one Christian name" has no place in our law of notice by the registration of an instrument. Pom. Eq. Jur. secs. 649, 654, 655, and cases. 14 L. R. A. (Pa.), p. 690.

Wm. M. Greene and Jas. H. McCollum for appellee.

1. The law attaches no weight, value or significance whatever to the middle Christian name or initial. It recognizes but one Christian name. The middle name or initial is immaterial, and may be stricken out or disregarded, or treated as surplusage. 3 Pet. 1; 14 id. 322; 12 Ark. 622: Lawson's Rights, Rem. and Pr., Vol. 5, sec. 2268; 1 Hill, 102; 2 ib. 566; 2 Cow. 463; 27 Tex. 503; 73 Ga. 25; 4 Johns. 119, note A; 5 id. 84; 21 Am. Rep. 179; 3 S.W. 764; Tiedeman, Real Prop. sec. 798; 25 Ill. 251; 1 Am. St. Rep. 89; 43 Am. Dec. 597; 80 id. 534; 99 id. 350 and note.

2. But granting that the middle initial is material, the facts in this case, and the mortgage on record, were sufficient to put appellant on enquiry. See Jones, Ch. Mortg. sec. 54; 54 Ark. 158; 25 Neb. 453; 13 Am. St. Rep. 501.

BATTLE, J. BUNN, C. J., dissents.

OPINION

BATTLE, J.

Was the mortgage by Henry M. Ward to W. A. Hanegan, under the name of Henry N. Ward, after it was acknowledged and filed for record, notice of its existence and contents to W. T. Fincher, the second mortgagee? As between Hanegan and Ward, the mortgage was undoubtedly valid, for the reason that Ward was estopped from saying that Henry N. Ward was not his true name. But it could, under no circumstances, be valid against third persons who acquired liens on, or purchased, the property thereby mortgaged, until it was filed for record. Mansfield's Digest, sec. 4743. If it had been executed and properly acknowledged by the mortgagor, under his true name, and filed for record, it would have been valid against all liens subsequently acquired by third persons from the mortgagor, and against all subsequent purchasers from Ward of the mortgaged property. Did the insertion in his name of the letter N instead of M, the correct initial of his middle name, render it invalid as to subsequent lienors and purchasers? Upon similar questions there is a contrariety of opinion.

In Gillespie v. Rogers, 146 Mass. 610, 16 N.E. 711, it is said: "Where deeds or other instruments requiring to be recorded are given or received by persons or corporations known by different names, the records may fail to furnish exact and literal information; and yet, when the instrument itself is a genuine one, and has been executed in good faith, the record has been held sufficient to furnish constructive notice of the real transaction. A striking illustration of this is found in a former decision of this court. The St. of 1865, c. 43, sec. 2, provided that no assignment of future earnings should be valid against a trustee process, unless recorded in the town or city clerk's office before the service of process. A man by the name of Germain Sirois, who was also sometimes called John Keever, made an assignment of his future earnings under the name of Joseph Cyr, which name he signed by his mark, being unable to read or write. This was duly recorded. There was no intention of misleading any body by the wrong name affixed to the assignment; it was a mistake, the man being an ignorant foreigner, who could not speak English. Afterwards a creditor brought a trustee process. It was held that the assignment was good as between the original parties to it, and, being recorded, was good as against attaching creditors. Ouimet v. Sirois, 124 Mass. 162; See also Gifford v. Rockett, 121 Mass. 431; O'Connor v. Cavan, 126 Mass. 117."

In Alexander v. Graves, 25 Neb. 453, 41 N.W. 290, the opinion of the court is succinctly and correctly stated in the syllabus of the case as follows: "A purchased certain personal property from B on time, and, for the purpose of securing the purchase price, executed a chattel mortgage on the property purchased. The purchase was made, and the chattel mortgage was executed, under an assumed and fictitious name. The parties to the transaction being unacquainted, the vendor supposed the name given was the true name of the purchaser. The purchaser stated that his residence was in Webster county, which was correct, and the mortgage was duly filed in the proper office in that county. Subsequent to the filing of the mortgage, A sold the property to C, under his true name, after C had examined for chattel mortgages executed by A, and found none. In an action of replevin by B against C for the possession of the mortgaged property, it was held that B should recover judgment." This decision, it seems to us, was based upon the fact that the mortgage was executed and filed before the second purchase, the court holding that the purchaser from the mortgagor had constructive notice of the existence of the prior chattel mortgage from the record.

In Johnson v. Hess, 9 L.R.A. 471, (an Indiana case), it appears that a judgment was recovered against Henry William Mankedick, and was entered in the record of the court and upon the judgment docket as recovered against "William Mankedick." He purchased a tract of land after the rendition of the judgment, and it was conveyed to him as "H. W. Mankedick." Thereafter, he sold and conveyed it to James G. LaForte, and described himself in the deed as "H. W. Mankedick. " LaForte then sold and conveyed it to William Johnson. Afterwards, an action was instituted by Johnson to enjoin the sale of the land under an execution on the judgment against Mankedick. Upon this state of facts, this question arose: "Was the judgment as recorded constructive notice to Johnson of its lien? The court held that Johnson was chargeable with notice of the existence of the judgment against William Mankedick, and of the amount and terms and condition of it, but nothing more; that he was not chargeable with notice that his remote grantor, H. W. Mankedick, and William Mankedick, named in the judgment, was the same person;" that "the judgment did not disclose the fact, nor did it suggest an inquiry which 'would have led up to' an ascertainment of the fact;" that "for all legal purposes, the full name of Johnson's grantor was Henry Mankedick;" and that "the middle initial was unimportant, and suggested nothing."

In Crouse v. Murphy, 12 L.R.A. 58 (a Pennsylvania case), one Daniel J. Murphy owned a lot in the city of Philadelphia. "His deed for the same was regularly recorded, as was a mortgage given by him for a part of the purchase money. He took and he incumbered the title in his proper name as Daniel J. Murphy. Roggenmoser desired to buy the lot. He found the title properly recorded, and incumbered by a mortgage. Turning from the recorder's office to that of the prothonotary, he caused search to be made for liens on the judgment index against Daniel J Murphy, and found none. He then completed his purchase, settled the purchase...