Green v. Meyers

ELLISON, J. This is a petition for injunction to restrain the sale of 'plaintiff’s real estate under an execution. Plaintiff had judgment in the trial court. On April 23, 1901, the plaintiff purchased from Eleanor Gr. Sibert the property in question. 'Theretofore, on January 18, 1901, defendants recovered judgment against E. Gr. Seibert for $108 and costs, and on that day took a transcript of the judgment to be filed with the clerk of the circuit court, where it was abstracted in the abstract of judgments as a judgment against E. G-. Seibert. Personal service was had in the suit upon which the judgment was rendered. E. G-. Seibert and Eleanor Gr. Sibert are one and the same person. Plaintiff had no actual notice of the judgment when he purchased the property, and the question is, does the record charg’e him with notice? 1. The names “Seibert” and “Sibert” are not only idem sonmis — they not only sound the same in utterance — but they are, practically, the same name. Therefore, no matter which way it may be spelled by the party himself, or by the recording officer, it is notice. It is common knowledge that proper names are spelled in a variety of ways, and everybody is presumed to have such knowledge. Thus, Reed, Reid and Read are different ways of spelling one name. Manifestly, the record of a judgment against Réed is notice to a subsequent purchaser from the same man signing the deed as Reid. “Persons' searching the judgment docket for liens, ought to know the different forms in which the same name may be spelled and to make their searches accordingly, unless, indeed the spelling is so entirely unusual that a person can not be expected to think of it.” Meyers v. Fegley, 39 Pa. St. 434. 2. The fact that the indices are kept on the vowel system, as in this case, and that names beginning with the letters “Si,” are found several pages further on than those beginning with “Se,” can make no difference, for, as before stated, one must be charged with [442] notice that the name he seeks may he found spelled either way. 3. But it has been decided in Pennsylvania that, in so far as the initial capital letter is concerned, this must be understood to apply to the English language, for our records are kept in that language. So that .the same name may he spelled in such different ways in some other language as not to appear to he the same to the English mind, the difference producing a tendency to mislead. Thus, the letters T and J are pronounced alike in the German language, yet a judgment entered against George P. Joest is not notice of a judgment against George P. Yoest. Heil’s Appeal, 40 Pa. St. 453. There is nothing to suggest to the ordinary English mind in looking through the -letter T, in the indices, that the name might he found under some other capital. If, however, in the spelling of a name, letters following the capital have the same sound in a foreign language that a different letter has in our language and this sound is customarily given it in the community, then they will he held idem soncms, as Bupp for Bopp in Meyers v. Fegley, supra. As to these suggestions, it is.not necessary that we make any decision, and we do not. 4. Some confusion has arisen in the authorities as to whether the rule as to idem sonam applies to records. It is said that the law of notice by record is addressed to the eye and not the ear, and that therefore the rule can not apply to records. It is true that record notice is principally a matter of sight and not sound. Tet it is, above all, a matter for the consideration of the mind, and if the record of a name spelled in one way should directly suggest to the ordinary mind that it is also commonly spelled another way, the searcher should be charged with whatever the record showed in some other spelling under the same capital letter. It is not necessary to decide here whether this would he carried out to the extent of holding that the searcher [443] for information in the record should look under some other capital for another mode of finding the ■ same name; as for instance, Kane and Cain, Phelps and Felps, etc. But that the rule of idem sonans has been applied to records,- has been too often accepted by the Supreme Court of this State for us to question it. See Simonson v. Dolan, 114 Mo. 179; Whelen v. Weaver, 93 Mo. 432; Chamberlain v. Blodgett, 96 Mo. 482; Geer v. Lumber Co., 134 Mo. 93. 5. The further question to consider is whether the judgment being abstracted by the initials of the Christian name, E. G., is sufficient notice to & purchaser from Eleanor G. ? We think that it is. The record is for notice. And a person is chargeable with notice if he has knowledge of that which'would put a reasonable man on further inquiry, and such inquiry followed, would lead to knowledge of the thing sought for. One who is interested in examining a record index for the name of Eleanor G. as the Christian name of a certain surname and finds prefixed to such surname, the initials E. G., will certainly have his attention arrested, and it would surely beget in him enough concern, if he be acting in good faith, to inquire further. So .we say that the initials, E. G. in the abstract of judgment in this case, were sufficient notice of the full name Eleanor G. See Jones, Estate, 27 Pa. St. 336; Fisher v. Bush, 133 Ind. 321; Pinney v. Russell, 52 Minn. 447; Bank v. Kuhule, 50 Kan. 420. In so concluding we are not unaware of those cases wherein the Supreme Court of this State and the United States and this court have decided that in the absence of matter of estoppel, an order of publication, or notice of sale by publication, against a person by the initial of his Christian name, was not sufficient. Skelton v. Sackett, 91 Mo. 377; Turner v. Gregory, 151 Mo. 100; Marx v. Hanthorn, 148 U. S. 172; Mosely v. Riely, 126 Mo. 124; Burge v. Burge (not yet reported). But they are to be distinguished from cases of the kind now [444] being considered. An order of publication is a mode of service as a requisite to jurisdiction. A person may know that an action is pending against him, and he may know that notice by an order of publication was intended for him, yet such knowledge will not supply the place of a proper order published with substantial correctness. In- other words, knowledge, in such cases, will not supply notice. But in the matter of record of judgments and deeds, the reverse is true; knowledge will supply notice. If there be knowledge there need not be notice. So that if one has knowledge of a deed it is not necessary that he have the notice which the law attaches to its being recorded. 6. The abstract of judgment as entered, while correctly stating the amount of the judgment, failed to state the amount Qf the costs, and this is given by plaintiff as a reason why there was no lien created. The statute (section 3759, Revised Statutes 1899), re^quires: “ ... An abstract of said judgment shall be entered in a book to be kept by the clerk of the circuit court having jurisdiction of civil cases within such city, and shall state in ruled columns: first, the names of the parties; second, the date; third, the nature of the judgment or decree; fourth, the amount of the debt, damages and costs.” The abstract of judgment in question was the following : “Against whom: Seibert, E. G.; in whose favor, Harry Gr. Meyers et al.; date of Judgment, January 18, 1901; nature of judgment, general; No. of case, trans.; amount of judgment, $108; where entered, M. 406-407.” We are of the opinion that the omission to name the costs, or amount thereof, was not sufficient to nullify the judgment otherwise properly entered. And defendant offering to remit the amount of the costs, the judgment will be reversed. All concur.