Elbert v. Wilmington Turngemeinde

Boyce, J., after stating the facts as above, delivered the opinion of the court: [1-3] Misnaming the plaintiff, or the defendant, in an action is ground for plea in abatement, but not for defeating the action, [358] if the misnamed party is clearly identified. In such case the plaintiff will be allowed to amend. Lapham, etc., v. P., B. & W. R. Co., 4 Pennewill, 421, 56 Atl. 366; Culver et al. v. P., B. & W. R. Co., ante, 102 Atl. 980; Allen v. P., B. & W. R. Co., ante, 102 Atl. 985. See, also, M. B. Co. v. P. P. C. Co., 4 Pennewill, 90, 54 Atl. 687, wherein the defendant, appearing specially for the purpose, was allowed to file an affidavit of defense, though sued in wrong name. A misnomer must always be pleaded, and in the settled order of pleading, except for matter arising after the commencement of the action, or without the knowledge of the defendant at the time of pleading. Culver et al. v. P., B. & W. R. R. Co., supra. A corporation defendant cannot take advantage of a misnomer, in arrest of judgment, but must plead in abatement. 1 Chit. Plead. § 451. In Commonwealth Beneficial Association v. Trusty, 1 Boyce, 64, 74 Atl. 559, on appeal from a justice of the peace, the plaintiff below obtained a judgment against “The Commonwealth Beneficial Association,” the defendant below. The entry of the statutory security required on appeal was on behalf of “Commonwealth Beneficial Association,” and the appeal was docketed in the Superior Court in that name. Objection was made by motion to dismiss the appeal which was allowed, on the ground that the corporation defendant in the action before the justice did not take the appeal. There appears to be no decision in this state upon the precise point involved in this case., But because of the former decisions of our courts to which reference has been made, it was suggested in the argument of' counsel that the validity of the title of the defendant in error and of its right to convey a good fee simple title to the real estate in question should be judicially determined. [4, 5] While in actions at law misnomers should be objected to by proper form of pleadings or proceedings, yet in regard to mistake in setting out the name in a deed, the rule is that if it can be ascertained from the deed who is intended, the deed is not vitiated by the mistake. The misnomer of a corporation as grantee in a deed is not sufficient to defeat the grant, if the identity is manifest and the corporation accepted the deed as delivered. In the absence of extrinsic circumstances, it is suf [359] ficient if the grantee in the deed is expressed in the substance of the name of the corporation. The question in this case stands the same as if the controversy was between Blouth et al., the grantors in the deed mentioned in the statement of facts, and “Wilmington Turngemeinde,” plaintiff below, which has been in possession of the premises mentioned and described in said deed since the execution and delivery thereof. Under the agreed statement of facts the said deed, though made to “The Wilmington Turngemeinde,’’ is effectual to convey the title to said premises to “Wilmington Turngemeinde,” the obviously intended corporation grantee. In all such cases, evidence aliunde the deed is competent to identify the actual grantee. Speaking generally, it is the opinion of the court that the inclusion or the exclusion of the word “the,” where it is, or is not properly, a part of a corporate name, will not vitiate a grant of lands either to or by the corporation. Under the facts of this case, it is manifest that Wilmington Turngemeinde, the plaintiff below, is the grantee in the said deed from Blouth et al., and the court below did not err in its finding. It is the unanimous opinion of the court that the judgment below should be affirmed.