Turk v. Benson

Burice, J. In April, 1901, 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. Eideout. At said time, there was in said county a judgment docketed against William J. Eideout upon which there was due the sum of $81.58. The abstracter knew neither the judgment debtor nor any person of the name of Eideout 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 [203] 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 Gr. 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 Gr. 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 doqtrine 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. Por 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, [204] 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 Atl. 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. 446; 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.E.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. Eor 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 J. was the same and identical person as William G., the middle initials being different. Had one or the other of the initials been entirely omitted, and either the grantee of the deed or thé judgment debtor been shown as simply William Ride-out, a different state of facts would exist, and possibly it would be the duty of the abstracter to show the judgment. Upon this, however, we express no opinion. Under the existing facts, however,^ he was confronted with a name which, though similar, was yet complete, and [205] distinctly different from the one for whom his search was being conducted, and he could not be expected to index this different name. If plaintiff’s contention were adopted it would cast upon the abstracter not only the duty of making search for similar names, but also the burden of determining the validity of the lien created by these judgments. This is not the contemplation of the law. The plaintiff herein, being a subsequent purchaser without notice, was under no obligation to pay such .judgment. 16 Am. & Eng. Enc. Law, 133, note 1, and cases cited. The judgment is reversed, with instructions to dismiss the action.