Turk v. Benson
| Decision Date | 10 April 1915 |
| Citation | 152 N.W. 354,30 N.D. 200 |
| Court | North Dakota Supreme Court |
Rehearing denied April 26, 1915.
Appeal from the District Court of Pierce County, Burr, J.
Reversed.
Judgment reversed, with instructions.
Torson & Wenzel, for appellant.
A judgment is not a lien upon specific property, but merely gives a right to levy, to the exclusion of subsequent adverse interests. 23 Cyc. 1350 (A).
The erroneous omission or introduction of a middle initial in defendant's name, or a mistake in such middle initial will prevent the judgment from having effect as a lien. 23 Cyc. 1358 (ii) and note 40; Johnson v. Hess, 126 Ind. 298, 9 L.R.A. 471, 25 N.E. 445; Crouse v Murphy, 140 Pa. 335, 12 L.R.A. 58, 23 Am. St. Rep. 232, 21 A. 358; Hutchinson's Appeal, 92 Pa. 186; Davis v. Steeps, 87 Wis. 472, 23 L.R.A. 818, 41 Am. St. Rep. 51, 58 N.W. 769; Wicker v. Jenkins, 49 Tex. Civ. App. 366, 108 S.W. 188.
Under such circumstances, plaintiff should not have paid the judgment. He had no valid notice of its existence, and it was not enforceable against him. 16 Am. & Eng. Enc. Law 133, note 1; Wood v. Reynolds, 7 Watts & S. 406; Hopper v. Lucas, 86 Ind. 43; Stott v. Irwin, 2 Chester Co. Rep. 137; Long v. Campbell, 37 W.Va. 665, 17 S.E. 197; King v. Clark, 7 Mo. 269; Carney v. Bigham, 51 Wash. 452, 19 L.R.A. (N.S.) 905, 99 P. 22; Dutton v. Simmons, 65 Me. 583, 20 Am. Rep. 729; Ambs v. Chicago, St. P. M. & O. R. Co., 44 Minn. 266, 46 N.W. 321; Bowen v. Mulford, 10 N.J.L. 230.
Albert E. Coger and T. A. Toner, for respondent.
It is generally held that the omission of the middle initial, or a mistake in such an initial, is entirely immaterial in legal proceedings, whether civil or criminal. The law recognizes but one Christian name. Johnson v. Day, 2 N.D. 295, 50 N.W. 701; Rev. Codes 1905, § 2238; Comp. Laws 1913, § 3097; Pollard v. Fidelity F. Ins. Co., 1 S.D. 570, 47 N.W. 1060; Stever v. Brown, 119 Mich. 196, 77 N.W. 704; Moseley v. Reily, 126 Mo. 124, 26 L.R.A. 721, 28 S.W. 895; Beattie v. National Bank, 174 Ill. 571, 43 L.R.A. 654, 66 Am. St. Rep. 318, 51 N.E. 602; Fincher v. Hanegan, 59 Ark. 151, 24 L.R.A. 543, 26 S.W. 821; Huston v. Seeley, 27 Iowa 190; Pinney v. Russell & Co., 52 Minn. 443, 54 N.W. 484; Miltonvale State Bank v. Kuhnle, 50 Kan. 420, 34 Am. St. Rep. 129, 31 P. 1057; 21 Am. & Eng. Enc. Law, 307; 16 Am. & Eng. Enc. Law, 114; Laflin & R. Powder Co. v. Steytler, 14 L.R.A. 690, note; People v. Lake, 110 N.Y. 61, 6 Am. St. Rep. 344, 17 N.E. 146; Sullivan v. State, 6 Tex.App. 333, 32 Am. Rep. 580; Allen v. Taylor, 26 Vt. 599; Felker v. New Whatcom, 16 Wash. 178, 47 P. 505; Long v. Campbell, 37 W.Va. 665, 17 S.E. 197; State v. Martin, 89 Me. 117, 35 A. 1023; Re Snook, 2 Hilt, 568; Bletch v. Johnson, 40 Ill. 116; Games v. Stiles, 14 Pet. 322, 327, 10 L. ed. 476, 478; Fink v. Manhattan R. Co., 15 Daly, 479, 8 N.Y.S. 327, 29 N.Y. S. R. 153; Erskine v. Davis, 25 Ill. 251; Milk v. Christie, 1 Hill, 102; Morgan v. Woods, 33 Ind. 24; Mutual L. Ins. Co. v. Doherty, 23 C.C.A. 144, 39 U.S. App. 468, 77 F. 853; Rooks v. State, 83 Ala. 80, 3 So. 720; State v. Smith, 12 Ark. 622, 56 Am. Dec. 287; Hicks v. Riley, 83 Ga. 332, 9 S.E. 771; Langdon v. People, 133 Ill. 382, 24 N.E. 874; Schofield v. Jennings, 68 Ind. 232; Ross v. State, 116 Ind. 495, 19 N.E. 451; State v. Bowman, 78 Iowa 519, 43 N.W. 302; Nicodemus v. Young, 90 Iowa 423, 57 N.W. 906; Sparks v. Sparks, 51 Kan. 195, 32 P. 892; Nolan v. Taylor, 131 Mo. 224, 32 S.W. 1144; King v. Hutchins, 28 N.H. 580; Dilts v. Kinney, 15 N.J.L. 130; Western Loan & Sav. Co. v. Silver Bow Abstract Co., 31 Mont. 448, 78 P. 774; Smith v. Holmes, 54 Mich. 104, 19 N.W. 767; Holmes v. Crooks, 56 Neb. 466, 76 N.W. 1073; Hirshiser v. Ward, 29 Nev. 228, 87 P. 171; United States Wind Engine & Pump Co. v. Linville, 43 Kan. 455, 23 P. 597; Mallory v. Ferguson, 50 Kan. 685, 32 P. 410; Lattin v. Gillette, 95 Cal. 317, 30 P. 545; Dutton v. Simmons, 65 Me. 583, 20 Am. Rep. 729; People ex rel. Bush v. Collins, 7 Johns. 549; Geller v. Hoyt, 7 How. Pr. 265; Clute v. Emmerick, 26 Hun, 10; Weber v. Fowler, 11 How. Pr. 458; Haverly v. Alcott, 57 Iowa 171, 10 N.W. 326; Hibberd v. Smith, 50 Cal. 511; Gillespie v. Rogers, 146 Mass. 612, 16 N.E. 711.
A judgment at once becomes a lien against real property of the judgment debtor in the county, upon docketing and recording same. Bostwick v. Benedict, 4 S.D. 414, 57 N.W. 79.
If the names as indexed are idem sonans, the docket entry is sufficient. Green v. Meyers, 98 Mo.App. 438, 72 S.W. 128; Delaney v. Becker, 14 Pa. S.Ct. 392.
In April, 1907, defendant Benson was a bonded abstracter, and as such prepared and certified an abstract of title for plaintiff to a certain lot which defendant was about to purchase from one William G. Rideout. At said time, there was in said county a judgment docketed against William J. Rideout upon which there was due the sum of $ 87.58. The abstracter knew neither the judgment debtor nor any person of the name of Rideout within the county, and certified that there was no judgment of record "against any of the within-named grantees, . . . which are liens on said premises." On the strength of this abstract, plaintiff purchased the lot, and claims that he was later forced to pay the amount due upon the judgment because said judgment was a debt of William G. Rideout which had been erroneously docketed against an imaginary William J. Rideout. Plaintiff had judgment in the court below and defendant appeals.
(1) But one question is presented to us for decision, namely, whether it was the duty of the abstracter to show that there was a judgment docketed against William J. while making certificates relative to William G. Respondent relies largely upon the case of Johnson v. Day, 2 N.D. 295, 50 N.W. 701. He admits in his brief, however, that there has always been a division of the authorities as to the effect of the omission of, or mistake in, the middle initial, and further admits that in the case of Dutton v. Simmons, 65 Me. 583, 20 Am. Rep. 729, the court says: "But there has been a growing dissatisfaction with the doctrine of the ancient cases upon this subject; and in this state (and Massachusetts) the old doctrine must be regarded both by the precedents and practice as overruled." The trial court in his memorandum decision, although attempting to follow the Johnson-Day Case, recognizes the weight of the contrary doctrine and the fact that in the Johnson-Day Case the question at issue was between the parties to a mortgage,--the rights of third persons not being involved.
Appellant cites a long line of cases showing that the ancient rule that the court would pay no attention to a middle initial has been largely, if not entirely, abrogated by the modern decisions. This is, of course, a natural consequence of the increase of population and the frequence with which persons appear with both Christian names and surnames identical. Aside from the distinction as to the age of the authority, there is a still further division of the cases along the lines of the extraneous knowledge of the person making the examination. Thus, if William G. Rideout had been served in a civil action with a summons in which his name had been erroneously written William J. Rideout, it is not likely that the proceedings would have been held to be a nullity, because certain duties devolved upon him by reason of the fact that he was made the recipient of a copy of the summons. For this very reason the case of Johnson-Day, supra, is not in point in this case, it being evident that a notice relative to mortgage wherein there was a description of the land, and page where it might be found in a certain book, and other means of identification, would not as readily be vitiated by an erroneous initial in the mortgagor's name as would the judgment in the case at bar. In a case note at page 415 of volume 7 L.R.A. (N.S.) will be found a resume of most of the cases in point upon this question. A perusal thereof will impress the reader with the necessity of considering the circumstances of each case, rather than relying upon any rule of law. The rule is likewise given in Cyc.: "The erroneous omission or introduction of a middle initial in defendant's name, or a mistake in such middle initial, will prevent the judgment from having effect as a lien." 23 Cyc. 1358 (ii) and note 40; Crouse v. Murphy, 140 Pa. 335, 12 L.R.A. 58, 23 Am. St. Rep. 232, 21 A. 358; Hutchinson's Appeal, 92 Pa. 186; Davis v. Steeps, 87 Wis. 472, 23 L.R.A. 818, 41 Am. St. Rep. 51, 58 N.W. 769; Wicker v. Jenkins, 49 Tex. Civ. App. 366, 108 S.W. 188; Notes in 14 L.R.A. 394 and 7 L.R.A. (N.S.) 416; Warvelle, Abstracts, §§ 466, 467; Johnson v. Wilson, 137 Ala. 468, 97 Am. St. Rep. 52, 34 So. 392; Johnson v. Hess, 126 Ind. 298, 9 L.R.A. 471, 25 N.E. 445; Davis v. Steeps, 87 Wis. 472, 23 L.R.A. 818, 41 Am. St. Rep. 51, 58 N.W. 769; Phillips v. McKaig, 36 Neb. 853, 55 N.W. 259; Grundies v. Reid, 107 Ill. 304.
As stated in the note in 23 L.R.A. 818: "The general rule by which an initial of a middle name is regarded as no part of the name is denied application to the case of docketing a judgment for constructive notice." Judgments stand in a class by themselves because there is no extraneous data from which the examiner can determine the identity of the person. In this it differs from chattel mortgages, where the searcher always has the description of the property covered thereby as a guide to aid him in determining the identity of the person executing the same. For these reasons we limit the application of this rule to judgments alone, leaving other questions to be determined when reached. In the case at bar there is nothing to indicate that William...
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