Stratton v. McDermott , 89 Neb. 622 ( 1911 )

Sedgwick, J.

The plaintiff claims a quarter section of land in Lincoln county through a quitclaim deed from one Harrington Emerson. The defendants claim the land through sheriff’s deed upon foreclosure of delinquent taxes. The question presented is as to the sheriff’s deed. The trial court found the sheriff’s deed invalid and entered a decree canceling it. The defendants have appealed.

Emerson held a mortgage on this land, which was duly recorded, and in which he was described as H. Emerson. He foreclosed the mortgage in an action in which H. Emerson was plaintiff, and was so described in all of the proceedings in that foreclosure. He was the purchaser in the sale upon the foreclosure of his mortgage, and purchased the land in the name of H. Emerson, and received a sheriff’s deed' in that name. He recorded his deed and held the land under it for more than six years, and was generally known and did business in the name of H. Emerson. Having neglected to pay the taxes on this land, the county began foreclosure proceedings in September, 1900. In the title of the action in this petition for foreclosure he was named as “H. Emerson, first name unknown,” and his wife was named as “- Emerson, his wife, first name unknown.” It is stipulated by the parties that in all subsequent proceedings he was named “H. Emerson.” He was not a resident of this state at that time, and service was obtained by publication. In the affidavit for service and in the publication of the summons he was named H. Emerson, without any other name or description, as well as in the findings, decree, return of sale and confirmation. The defendant Martin H. McDermott purchased the land, and upon confirmation received a sheriff’s deed in 1901, and has since that time been in undisputed possession of the land. About seven years thereafter the plaintiff obtained a quitclaim deed, executed by Harrington Emerson, and began this action to cancel the defendant’s deed and quiet the plaintiff’s title. The defendant answered, alleging substantially the above facts, and alleged that Emerson “took the said lands by deed of record and held the same under the designation of H. Emerson, and as such and by such name he is deemed to have taken, owned, and held said described lands, and by none other, and the said Hi Emerson, Harrington Emerson, and his- or their grantees are estopped by law from denying that said lands, were taken, owned and held by him, the said H. Emerson, under the name of Harrington Emerson or any other name, appellation or designation, and is further es-topped from denying that notice conveyed to him, in accordance with the laws of the state of Nebraska, under the name of H. Emerson is not a good and sufficient service of process on him, the said H. Emerson or Harrington Emerson.”

Under these circumstances, are Emerson and his grantees estopped to allege, for the purpose of vacating the tax foreclosure proceeding; that H. Emerson was not the true name of the owner of the land? Section 148 of the code provides: “When the plaintiff shall be ignorant

of the name of a defendant, such defendant may be designated in any pleading or proceeding by any name and description, and when his true name is discovered the pleading or proceeding may be amended accordingly. The plaintiff in such case must state, in the verification of his petition, that he could not discover the true name, and the summons must contain the words ‘real name unknown,’ and a copy thereof must be served personally upon the defendant.”

As there was no statement in the verification of the petition in foreclosure nor in the summons that plaintiff could not discover the true name, the proceedings were not under this section of the statute. It is a familiar rule, which has often been applied by this court, that a defendant must be sued by his true name “if the same is known or can be ascertained by the party suing him,” and that the name of a person consists of a given name and a surname. Enewold v. Olsen, 39 Neb. 59. “Statutes creating a method for bringing a defendant into court without personal service are strictly construed, where actual notice may never reach him.” Butler v. Smith, 84 Neb. 78: It has been many times held by this court that an action in which the defendant is sued in the initial letters of his name only is irregular, and. in the absence of personal service no valid judgment can be rendered. Enewold v. Olsen, supra; Butler v. Smith, supra; Herbage v. McKee, 82 Neb. 354; Gillian v. McDowall, 66 Neb. 814; McCabe v. Equitable Land Co., 88 Neb. 453; McNamara v. Gunderson, ante, p. 112. These cases, however, do not decide the precise question involved in the case at bar.

The plaintiff contends that H. Emerson, who held the title to this land, is one and the same person with Harrington Emerson, from whom he obtained the quitclaim deed. The evidence tending to show this identity, it is urged, is not satisfactory; but we prefer to consider the evidence as sufficient upon this point for the purpose of this discussion.

The trial court made special findings of fact upon the issues presented in the petition, but made no findings upon the allegations of the answer upon which the estoppel against the plaintiff is predicated. We are for the first time called upon to determine whether the plea of estoppel constitutes a defense in such an action. It appears that this precise question has been before the courts of our sister states and, so far as we have observed, such estoppel has generally b.een held to constitute a good defense. In Blinn v. Chessman, 49 Minn. 140, defendant George Chessman had taken title to land by deed in which he was named “George Cheeseman.” The deed was recorded. A few years later he left the state, and an action was begun against him and another “to determine their adverse claims to the property.” In that action he was named, as in the deed, “George Cheeseman,” and service was by publication only. The matter determined by the court is stated in the opinion as follows: “The ’principal question here presented is whether that judgment against Cheeseman was of effect as to this defendant Chessman, as respects his title to the land.” The opinion contains a satisfactory discussion of the question of estoppel in such case. It holds that the defendant, by taking title in that name and placing his deed upon record, put himself in a position so that “he cannot well complain that the name in which he took the title, and which he put forth to the world, by the records, as the name of the grantee, should be'employed in proceedings instituted for an adjudication concerning that title,” The opinion is quoted quite at length by the supreme court of California in Emery v. Kipp, 154 Cal. 83, 97 Pac. 17, a very recent case, decided in 1908. In that case the title to land was taken in the name of Louisa Munro, and the title deed was so recorded. The true name of the grantee, who was at that time an unmarried woman, was Madaline Louisa Munro. After this deed was taken and recorded, she married Mr. Emery, and still later an action to quiet title was prosecuted against her in which she was named Louisa Munro. It was claimed that the judgment against her obtained in that name was void and subject to collateral attack, but the court held otherwise, and discusses the question somewhat at length. The law governing the case is stated in the syllabus (97 Pac. 17) as follows: “If one takes title to land in any other.than his true name, so far as that property is concerned, he has assumed the name in which he takes title, and he may be sued thereunder.” The court cites, also, with approval Elting v. Gould, 96 Mo. 535, 9 S. W. 922. This latter case appears to present substantially the same question as the one presented in the case at bar. In that case Richard O. Elting was the owner of the land involved. He had taken the patent from the United States in which he was named R. O. Elting. The patent was duly recorded, and afterwards an action was brought to enforce a tax lien in which the defendant was named R. O. Elting. The service was by publication. The question was as to the validity of the judgment in those proceedings. In that state it has been held that “publication addressed to Q. R. Noland was not sufficient to give the court jurisdiction of Quinces R. No-land” (Skelton v. Sackett, 91 Mo. 377, 3 S. W. 874), the same doctrine to which this court has adhered in many prior decisions. The court distinguishes the case then under consideration from the former case cited in these words: “There is this difference between this case and that one, and we think the difference is material: There, the recorded patent showed title in Quinces R. Noland; here, the patent which was recorded in Barton county, and which was the only evidence of title on record, showed that R. O. Elting owned the land. It is by this name and description that he is known in his own title papers, and it is an admitted fact that he was a nonresident of this state.”

It is insisted that in the case at bar the defendant was not sued by his complete name, nor in any complete name; that, although his surname is stated in full, only the initial letter of his Christian name was stated. There is no just ground for this distinction. The law does not forbid the use of letters as names. This court has several times recognized that fact. In Oakley v. Pegler, 30 Neb. 628, this court said: “Whether an apparently initial letter will be treated as a name must depend upon the manner in which the question is raised.” And in Scarborough v. Myrick, 47 Neb. 794, the rule is stated to be: “In the absence of a showing to the contrary, it will not be presumed, for the purpose of invalidating a judgment rendered against a defendant, that he has any other Christian name than the initials by which he was sued.” The court was considering a case in which the defendant had been named by initial, and it was held that the initial would be presumed to be his entire name, as the record “nowhere discloses that the defendant has any other Christian name than the initials by which he was sued.” The supreme court of Colorado has discussed this point more fully, and in that discussion said: “Twelve authorities are cited in support of the proposition £it is a presumption of law that every person has both a Christian and a surname.’ No doubt that such is the legal presumption, but no authority is cited to show that £M. H.’ may not be the Christian name, and all there is of it.” Taylor v. Insley, 7 Colo. App. 175, 42 Pac. 1046. The supreme court of Wyoming in Perkins v. McDowell, 3 Wyo. 328, 23 Pac. 71, said:. “While it does not occur frequently, there are many instances where single letters constitute the only Christian name. We cannot, then, judicially know that the letters £J. M.’' are not a name, and, as the petition does not disclose that the letters ‘J. M.’ are not the Christian name of the plaintiff, it follows that there is no defect apparent on the face of the petition in this respect.”

We think that if one takes a title to real estate, and takes it in the name by which he is commonly known, and so records his title and holds possession and the use of the land under that record title, in an action to test his interest in the lands he may be named as he is named in his record title, and, if such action proceeds to judgment, he ought to be estopped to attack that judgment and the proceedings thereunder collaterally. A man’s Christian name may consist of a letter only, and, if he is so named in his title of record, he ought also to be estopped in collateral proceedings to allege that the name so assumed is not his full name. McCabe v. Equitable Land Co., supra, and McNamara v. Gunderson, supra, are not inconsistent with this view. In the former the defendant was not sued in the name in which he held the title. In his deed he was named Rolland B. Ballard, and the action was against him in his initial only. The holding therefore in that case was in harmony with our former decisions. The latter case is clearly distinguished from the case at bar by the language of the opinion. It is said: “It is conceded that there is no element of estoppel in this case, and it is apparent that the record title, to the land in question was in the railroad company at all times prior to the 5th day of November, 1906. Therefore the taxes which became delinquent and which were the basis of the foreclosure proceedings must have been assessed against that company. The record owner against whom the property was assessed was not made a party to the foreclosure suit.” The defendant in the foreclosure proceedings had no title of record when that suit was begun nor until several years after final decree therein.

We think that in this case, under the facts stipulated by the parties, the plaintiff is estopped to say that the name in which his grantor took and held this land was not his true name.

The judgment of the district court is reversed and the cause remanded, with instructions to enter a decree dismissing the action at plaintiff’s costs.

Reversed.