Loser v. Plainfield
| Decision Date | 17 December 1910 |
| Citation | 128 N.W. 1101,149 Iowa 672 |
| Parties | LENA LOSER, as Executrix of the Estate of LIPMAN LOSER, Deceased, Appellee, v. PLAINFIELD SAVINGS BANK, Appellant |
| Court | Iowa Supreme Court |
Appeal from Chickasaw District Court.--HON. A. N. HOBSON, Judge.
ACTION in equity to foreclose two certain mortgages executed by William McGregor and Jenny McGregor, his wife, to Lipman Loser. There was a decree as prayed and the Plainfield Savings Bank claiming a superior lien on the mortgaged land appeals.
Affirmed.
Dawson & Wehrman, for appellant.
Springer Clary, Condon & Yarger, and Sager & Sweet, for appellee.
A brief statement of admitted facts will make plain the nature of the case presented. One McGregor for a long time resident of the county became the owner by inheritance from his father of an undivided interest in land. Soon thereafter he executed and delivered two certain mortgages upon the property to Lipman Loser. One year later he executed and delivered two other mortgages thereon to the Plainfield Savings Bank. Each of said instruments was duly recorded very soon after its execution. No objection is raised to the sufficiency of the consideration for either mortgage or to its validity as against McGregor and the only controversy between the holders of the respective liens is upon the order of their priority. The occasion for that dispute arises as follows: The mortgages to Loser which are first in the order of time and record were signed and acknowledged by the mortgagor as "William McGregor" while the mortgages to the savings bank were signed and acknowledged by the same mortgagor as "J. W. McGregor." Lipman Loser having since died and McGregor having left the state the executrix of Loser's will instituted this proceeding in equity to foreclose the two mortgages first mentioned making the Plainfield Savings Bank a party defendant. The bank contests the priority of the Loser liens alleging that the true name of the mortgagor was J. W. McGregor; that the record of mortgages made by "William McGregor" did not operate to give constructive notice of said liens to appellant with whom he subsequently dealt under his true name; and that the mortgages made by him as "J. W McGregor" were taken and accepted by the bank without notice actual or constructive of the liens now so sought to be foreclosed. The trial court held with the plaintiff, established the priority of her claim, and the bank appeals.
The evidence offered upon the trial tended to establish the following facts: The mortgagor was the son of one John and Mary McGregor who gave to their son the name James William. In the family record it was written "James William McGregor" or "J. W. McGregor." The record itself is not in evidence, and the only member of the family testifying as a witness on the trial appears to be somewhat confused in his statements respecting it. Indeed, it would appear that he himself never knew his brother by any other name than William, and that his first knowledge of the use of any other name for him was acquired after the inception of the controversy now before us. It is shown beyond all reasonable question that as boy and man the mortgagor was known to all his family, friends, and neighbors as William McGregor or "Will McGregor." Most of the witnesses outside of the family who had known him for a long time appear never to have heard him addressed or spoken of as J. W. McGregor or James W. McGregor. Generally this continued to be the situation after he left the family home and entered upon business for himself in other parts of the county, but it does appear, especially in later years, that in the more formal matters of business he frequently wrote his name "J. W. McGregor." For instance, his bank account with appellant was kept in that name, and his checks were so subscribed. The postmaster at the small village where he was the proprietor of a blacksmith shop testifying for the appellant says that at this time (which was about the date of the appellant's mortgages) he was generally known and called Will or William McGregor, but that letters of a business character were addressed to him as J. W. McGregor. The father John McGregor (from whom the son's title was derived), died in November, 1901, when the mortgagor was about thirty-one years of age. The administrator's list of heirs of the deceased filed as required by the statute gives the name of the son as J. W. McGregor, and later, on the day following the execution of the first of the mortgages given to the appellant, McGregor became plaintiff by that name in proceedings for partition of the lands left by his father. It should further be said that in each of the mortgages given to Loser the mortgagors are described as "William McGregor and Jennie McGregor, husband and wife, heirs at law of John and Mary McGregor, " and in the mortgages to the appellant bank they are somewhat similarly identified as "J. W. McGregor and Jennie McGregor, husband and wife, sole heirs at law to an undivided one-eighth interest of the estate of Mary and John McGregor." The county recorder indexed the mortgages to Loser in the name of William McGregor and wife as grantors. The first mortgage to appellant is indexed in the name of J. W. McGregor and wife, but in the index of the record of the second mortgage the grantors were described as "John McGregor, by heirs of." All the mortgages described the property covered as the one-eighth part of the land described, and such description was noted in the index of the record. The trial court filed a brief finding of facts substantially as we have stated them, and an expression of its opinion that an examination into the estate of John McGregor and into the descent of his property such as was reasonably suggested by the mortgages would have inevitably revealed the prior liens, and that appellant is therefore not in position to deny constructive notice thereof.
The effect of a variation in the names of parties upon the constructive notice imparted by a record which is relied upon for the establishment of a lien or as a link in a chain of title is a matter over which there has arisen no little litigation, and the precedents thereon are not in all respects harmonious. It may, however, be taken as well settled that an instrument properly made of record is notice to the world not only of the facts and claims therein expressly set forth, but also of all other material facts which an inquiry thereby reasonably suggested would have developed, and that such notice is not affected or avoided by variations in names which do not mislead a subsequent purchaser or are of such character as ought not to mislead a purchaser of ordinary prudence and intelligence. State v. Shaw, 28 Iowa 67; Thomas v. Kennedy, 24 Iowa 397; Jones v. Berkshire, 15 Iowa 248; Mosle v. Kuhlman, 40 Iowa 108; Insurance Co. v. Bishop, 69 Iowa 645, 29 N.W. 761; Paxton v. Ross, 89 Iowa 661, 57 N.W. 428. " A purchaser is charged with notice of every fact shown by the records, and is presumed to know every other fact which examination suggested by the record would have disclosed." Bank v. Freeman, 171 U.S. 620 (19 S.Ct. 36, 43 L.Ed. 307); Pinney v. Russell, 52 Minn. 443 (54 N.W. 484). "Whatever is sufficient to put a purchaser on a chain of inquiry is sufficient to charge him with whatever an ordinary diligent search would have disclosed." Mettart v. Allen, 139 Ind. 644 (39 N.E. 239).
In discussing the effect of apparent discrepancies in the names of persons found in the paper or record chain of title, it is well first to inquire what is meant in this connection by the word "name" as applied to a person. It is perhaps a sufficient answer for present purposes to say that the name of any given individual is the word or combination of words by which he is distinguished from other individuals. It is the label or appellation which he bears for the convenience of the world at large in addressing him or in speaking of him or in dealing with him. According to the customs of English speaking people each person bears a family name which is continued from parent to child, and to which is prefixed one or more other words constituting his more specifically personal appellation and distinguishing him from others of the same family appellation. The former is spoken of as the surname and the latter as the given name or Christian name, and is ordinarily selected for him in infancy by his parents. But, contrary to the apparent thought suggested in argument in this case, there is no such thing as a "legal name" of an individual in the sense that he may not lawfully adopt or acquire another, and lawfully do business under the substituted appellation. In the absence of any restrictive statute, it is the common-law right of a person to change his name, or he may by general usage or habit acquire a name notwithstanding it differs from the one given him in infancy. Brayton v. Beall, 73 S.C. 308 (53 S.E. 641). A man's name for all practical and legal purposes is the name by which he is known and called in the community where he lives and is best known. To use the language of the Pennsylvania court, "A man's name is the designation by which he is distinctively known in the community." Laflin v. Steytler, 146 Pa. 434 (23 A. 215, 14 L. R. A. 690); Miller v. George, 30 S.C. 526 (9 S.E. 659). He may be as well known by one name as by another, and in such case the use of either is for most purposes sufficient. Gillespie v. Rogers, 146 Mass. 610 (16 N.E. 711); Brayton v. Beall, 73 S.C. 308 (53 S.E. 641).
It was an ancient rule that the law would recognize but two names of an individual, the surname and one given name, and that anything more would be disregarded as of no material significance. Generally the first...
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