Tomczak v. Bergman

Mr. Justice Dunn delivered the opinion of the court: The principal question in this case is whether the names Walenty Cierniak and W. Czerionak are idem sonans. The case was an application for registration of title, and the decree ordered the registration of the title to the premises in fee simple in the applicants subject to certain incumbrances and set aside a sheriff’s certificate of sale of the premises under a certain judgment. The applicants’ grantor was Walenty Cierniak, who conveyed the property to them on September 3, 1913. The greater part of the purchase money remained unpaid until November 14, 1913, and in the meantime there was recorded on November 7, 1913, a sheriff’s certificate of sale of the premises made on November 4, 1913, under an execution issued out of the circuit court of Cook county on a transcript of a judgment of a justice of the peace of that county against W. Czerionak, recorded on September 14, 1906, filed in the clerk’s office of the circuit court on October 26, 1906. Walenty Cierniak is the person against whom the. judgment was rendered by the name of W. Czerionak. The examiner found that the transcript of judgment filed in the clerk’s office was not notice to purchasers because the names were not idem sonans but that the certificate of sale filed in the recorder’s office was constructive notice of the judgment and sale, and because the purchase money was not paid until after such recording the examiner recommended that the registration of title be subject to such sale. The court overruled the appellant’s exceptions to the examiner’s finding that the names were not idem sonans and sustained the applicants’ exception to the finding that the recording of the certificate was constructive notice to them. The applicants were not chargeable with constructive notice of any incumbrance not in their chain of title. (Grundies v. Reid, 107 Ill. 304.) Therefore, in the absence of actual notice neither the transcript of judgment nor certificate of sale was notice to them unless the names of the judgment debtor and of their grantor were idem sonans. Not every variance in the spelling of names in deeds of conveyance and judicial proceedings is material. The cases are numerous in which names spelled differently have been held to sufficiently designate the same person, because, when pronounced according to the usual method of speaking, they sound substantially alike. The wrong spelling of the name in such circumstances is not a material variance. It frequently happens that in the same document or series of documents the name of an individual may appear with widely, different spellings, but the context or the order of succession or other facts may fix the identity of the person intended. In many of the cases in which the doctrine of idem sonans has been applied the question has not been one of notice but of identity. Here the question is one of constructive notice, — whether a purchaser from Cierniak, without any actual knowledge, is bound by the record of a judgment against Czerionak. The names look different. According to the usual method of English pronunciation they sound different They are foreign names. Evidence was introduced that according to the Polish pronunciation the first name would be pronounced “Sher-ni-ak” and the second “Sher-i-o-neck.” Decided cases are of no particular value on this question. An ordinary man seeing these two names in an index would believe they were different names; hearing them spoken or attempting to speak them himself they would seem to be different. There is no practical identity of sound. The court properly determined that they do not come within the rule of idem sonans. By the decree an additional fee of $41 was allowed to the registrar for the services of the examiner under the order of reference, including the taking of evidence and making of his report, the court finding such additional cost to have been occasioned by the unfounded claim of the appellant. This portion of the decree concludes as follows: “It is therefore ordered that said defendants pay said costs, amounting to $41, and a decree is hereby entered against them for said amount in favor of the registrar of titles.” The appellant objects that the court could not render a decree for costs in favor of the registrar and could not compel the appellant to pay the entire cost of the reference. Section 108 of the Torrens law requires the applicant to advance a fee of $15 in full of all services of the registrar and examiners up to the granting of the. certificate of title, and in Waugh v. Glos, 246 Ill. 604, we held that this fee was intended to cover the registrar’s fees in ordinary cases. We also held, in accordance with the same section of the statute, that an extraordinary allowance might be made in "proper cases and that the court might direct who should pay it." In that case the additional fee was charged against one who had introduced no evidence and made no contest other than to insist upon the introduction by the defendant of 'competent evidence to establish her own title, and we held a defendant, under such circumstances, Ought not to be required to pay any part of the costs. Here the contest was over the alleged right to a judgment lien, and the costs incurred in defeating this claim, which the court adjudged to be unfounded, were rightfully charged to the appellant. No decree, however, should have been rendered in favor of the registrar. The decree will be modified by striking out the words, “and a decree is hereby entered against them .for said amount in favor of the registrar of titles.” So modified the decree is affirmed. Decree modified and affirmed.