Breyer v. Gale ( 1925 )

This is an action to determine adverse claims to real property. From a judgment in favor of the plaintiffs, defendants appeal and ask a trial de novo in this court.

The case of Gilbert v. Gale, 50 N.D. 414, 196 N.W. 314, involved a state of facts substantially identical in all material respects. For the sake of convenience, the salient facts may be recapitulated as follows: On December 5, 1908, the fee title to the land in controversy was vested, of record, in one Nels Pearson. On August 21, 1913, the defendants docketed a judgment against one A.N. Pearson; on December 28, 1914, the property in controversy was distributed, by a final decree of the county court of Cass county in the estate of Nels Pehrson, to one Bengta Pehrson, widow; on August 6, 1917, the same property was again distributed by the county court of Cass county in the estate of Bengta Pehrson to various distributees, among whom was one Andrew Pehrson, as heirs at law of the said Bengta Pehrson; on March 12, 1920, the heirs at law aforesaid conveyed the premises to Nick S. Breyer, one of the plaintiffs herein. On January 5, 1921, Breyer sold the property under a contract for a deed to one Peterson; and in October, 1922, Peterson assigned his interest in the contract to the plaintiff, Louis F. Gratias.

It is the contention of the plaintiffs, and was the conclusion of the trial court, that the record of the judgment, obtained by the defendants on August 21, 1913, against A.M. Pearson did not afford constructive notice of the lien of such judgment to the plaintiffs as purchasers of the premises in controversy, in good faith and without actual knowledge whether the docketing of such judgment constitutes constructive notice in the circumstances is the principal question in this case.

Defendants contend strenuously that the title to the property having at one time been vested in Nels Pearson and that probate proceedings having afterwards been had in the name of Nels Pehrson, it appears that the names were used interchangeably, and that it was, therefore, the duty of one searching the record to consider as possible or probable liens upon the property any judgment docketed against a person spelling his surname Pearson. We think that this contention cannot be sustained, in view of the prior decision of this court in the case of Turk v. Benson,30 N.D. 200, L.R.A. 1915D, 1211, 152 N.W. 354, in which it was held that a judgment docketed against William J. Rideout did not afford constructive notice of a lien upon property owned by William G. Rideout. The plaintiff was required to search the record for liens upon the property of Nels Pearson; a judgment of record against A.N. Pearson would cast no duty upon him to make inquiry in order to ascertain whether the lien of that judgment was, in fact, a lien upon the property of Nels Pearson.

We are of the opinion that the doctrine of idem sonans has no application to the question before us. This is conceded by the appellant. We believe it is the contemplation of the recording statutes, with respect to docketing judgments, that the docket thereof shall impart notice to the eye and not to the ear; and that it is incumbent upon him who would obtain the benefit of the constructive notice imparted under the recording laws to see that his judgment is entered and docketed against the proper person and by his correct name. In the case of Schatz v. Kintyre Farmers' Co-op. Elevator Co. 52 N.D. 290, 202 N.W. 855, this court quotes with approval from Heil's Appeal, 40 Pa. 453, 80 Am. Dec. 590, as follows: "Upon this second question no light is thrown by the fact that the name of the debtor, though spelled with different capitals, is the same in sound. The act of assembly, which requires that judgment dockets and indexes shall be kept, provides for notice to the eye, not to the ear." Other cases are cited, with quotations, in some instances, in the Schatz case which are more or less apt in the case at bar. We are of the opinion that the record of the judgment against A.N. Pearson did not afford constructive notice to the plaintiffs of the lien of such judgment upon the property of Nels Pearson or Nels Pehrson or Andrew Pehrson.

The judgment of the trial court is affirmed.

CHRISTIANSON, Ch. J., and BURKE, BIRDZELL, and NUESSLE, JJ., concur.