Gilbert v. Gale

• Court: North Dakota Supreme Court
• Writing for the Court: BRONSON, Ch. J.
• Citation: Gilbert v. Gale, 50 N.D. 414, 196 N.W. 314 (N.D. 1923)
• Decision Date: 08 December 1923
• Docket Number: 358

196 N.W. 314

50 N.D. 414

A. M. GILBERT, as Administrator of the Estate of Oliver Wangberg, Respondent, v. J. H. GALE and F. B. Simmons, Appellants

No. 358

Supreme Court of North Dakota

December 8, 1923

In District Court, Cass County, Cole, J.

Action to determine adverse claims.

Defendants have appealed from the judgment.

Affirmed.

Judgment affirmed with costs.

Spalding & Shure, for appellants.

It is not uncommon to spell such words as "Bubb" -- "Bobb" but the courts hold the abstracter should search for both forms of spelling, or to be held accountable therefor. Myer v. Fegoly, 29 Pa. 429, 80 Am. Dec 534.

When the pronunciation of names are one and the same, and the issue is free from doubt, it will be determined by the court as a question of law. State v. Williams, 68 Ark 241, 57 S.W. 792.

The variety of names which the courts have passed upon to determine whether they are idem sonans is great, and further argument upon the subject aside from setting forth names which have been held to be idem sonans is useless. "Conda" and "Kennedy." State v. White 124 S.W. 668; "Critz" and "Krentz." Krentz v. Behrensmeyer, 17 N.E. 232; "Deadema" and "Diadema." State v. Paterson, 38 Am. Dec. 699; "Dugald" and "Dougal." Barnes v. People, 65 Am. Dec. 699; "Faust" and "Foust." Faust v. United States, 163 U.S. 452; "Josier" and "Josiah." Schooly v. Asherst, 12 Am. Dec. 232; "July" and "Julia." Dickson v. State, 28 S.W. 815; "Kellier" and "Kealiher." Mellette v. Blake, 18 A. 293; "Penryn" and "Pennyrine." Elliott v. Knott, 74 Am. Dec. 519; "Pillsby" and "Pillsbury." Pillsbury v. Dugan, 34 Am. Dec. 427; "Tilter" and "Tiller." Kelly v. Kuhnhausen, 89 P. 603.

"We think there is nothing in an error in a name. It is now quite generally held that the omission of the middle initial, or a mistake in such initial, is entirely immaterial in legal proceedings, whether civil or criminal." Johnson v. Day, 2 N.D. 295.

W. J. Clapp, for respondent.

"Every detail was thus made definite. This establishes Kunze was prima facie ready and willing to purchase. Flynn v. Jordal, 124 Iowa 457, 100 N.W. 326. The reason why the sale was not consummated was nothing of that kind, but was solely because of the condition of the record title. As to this it will not be presumed that "Krups" and "Krepps" are one and the same person, in the absence of proof under the reasoning of the recent holding of Turk v. Benson, 30 N.D. 200, L.R.A.1915D, 1211, 152 N.W. 354. And under Bruegger v. Cartier, 29 N.D. 575, 151 N.W. 34, and note in 38 L.R.A.(N.S.) 3, the title proffered was not a marketable one. Kunze had a right to refuse acceptance of such title." Harris v. Van Vranken, 32 N.D. 238.

"Whether in the case of an alleged judgment lien, which is a creature of statute and not of contract, the same reasoning would be held equally applicable we need not here discuss." Loser v. Plainfield Sav. Bank (Iowa) 31 L.R.A.(N.S.) 1112, 128 N.W. 1011; Thomas v. Desney, 57 Iowa 58, 10 N.W. 315; Insurance Co. v. Hesser, 77 Iowa 381, 4 L.R.A. 122, 14 Am. St. Rep. 297, 42 N.W. 325.

BRONSON, Ch. J. CHRISTIANSON, BIRDZELL, NUESSLE, and JOHNSON, JJ., concur.

OPINION

Statement.

BRONSON Ch. J.

This is an action to determine adverse claims. Defendants have appealed from the judgment. The facts are stipulated. Generally stated, they are:--Originally Nels Pehrson owned Lot Two, Block Five of Kirkham's Addition to Fargo, North Dakota. Through final decree, dated December 28th, 1914, in probate proceedings after his death, the title of the lot was vested in his widow, Bengta Pehrson. Through final decree, dated April 6th, 1917, in probate proceedings after her death, the title to the lot was vested in her heirs at law, in undivided shares, viz.:--To Emily L. Sundberg (nee Pehrson); Maria Cameron (nee Pehrson); Clara H. Pehrson; Anna K. Wharton (nee Pehrson); and to Andrew Pehrson. On March 18th, 1920, these heirs at law, by and through their names as above stated, conveyed such lot by warranty deed to Nick S. Breyer. On April 10th, 1922, said Breyer and his wife conveyed such lot by warranty deed to Oliver Wangberg, the original plaintiff herein. After the commencement of this action said Wangberg died. The present plaintiff, Gilbert, is the administrator of his estate. On August 2d, 1913, the defendants Gale and Simmons, in an action wherein they were plaintiffs against A. N. Pearson, secured a judgment against A. N. Pearson for $ 1,623.06. This judgment was entered and docketed against A. N. Pearson.

When Breyer made his deed, Wangberg investigated the records and found no judgment against the name Andrew Pehrson. He had no actual notice of the judgment against A. N. Pearson and no notice that the names Andrew Pehrson and A. N. Pearson referred to one and the same person. Further, he procured an abstract of the title to the lot, certified by an abstract company, which showed the lot to be free and clear of all judgment liens, without any judgment being shown against Andrew Pehrson and without mentioning the judgment against A. N. Pearson. In fact, no judgment was ever docketed against the name Andrew Pehrson. Thus, Wangberg accepted the warranty deed to the lot from Breyer and paid $ 880 therefor. Then the lot was vacant. Subsequently, Wangberg built a substantial house upon the premises at a cost of $ 4,400 and took possession. Andrew Pehrson is one and the same person as A. N. Pearson, and was commonly known under the name of A. N. Pearson. He and his family commonly pronounced their name as "Peerson." Wangberg was not personally acquainted with Andrew Pehrson and had no knowledge or notice that the names Andrew Pehrson and A. N. Pearson referred to one and the same person except such constructive notice as the records imparted. He further had neither knowledge nor notice, prior to the commencement of this action, as to the manner in which said Pehrson commonly pronounced his name. On December 21st, 1922, defendants caused an execution to be levied upon this lot for the purpose of selling the undivided one-fifth interest of Andrew Pehrson therein. Wangberg sought and secured a restraining order. He instituted this action in January, 1923. The trial court found that the docketing of the judgment against A. N. Pearson did not give notice of a claim of a judgment lien upon property owned by Andrew Pehrson to subsequent purchasers for value without notice and to Wangberg; that plaintiff was entitled to have Wangberg's title quieted as against the claims of the defendants.

Contentions.

Defendants assert that the judgment as docketed against A. N. Pearson was a judgment lien upon land owned by Pearson under the name of Andrew Pehrson, and afforded notice to Wangberg under the doctrine of "idem sonans" applicable to names. In an able brief citing many authorities, defendants contend that the question involved is one of pronunciation and not of spelling; that, consequently, the name Pehrson is idem sonans with the name Pearson; that, concerning the use of initials for the Christian names, it was proper to use the initials of Pearson's Christian names and that such initials charged the searcher of records with knowledge or notice of the full Christian names involved.

Plaintiff, on the contrary, maintains that as to the names involved, the rule of idem sonans may not be applied as against one having neither knowledge nor notice of the person involved or of the...