Butts v. Cruttenden , 1900 Pa. Super. LEXIS 66 ( 1900 )

Opinion bt

Rice, P. J.,

It is an established fact that the Cruttenden who signed the judgment note as William Cruttenden on which the Card judgment was entered in 1894, was the same person who executed the mortgage in favor of Dyer J. Butts, executor, in 1896. The further facts are established that this person, who lived near, and was well known to the mortgagor, was known in the community where he resided and by men with whom he did business both as “ William Cruttenden ” and “ William J. Cruttenden that he transacted business under both names; that he gave a large number of judgment notes which were entered of record in Tioga county, some of which were signed by him as “ William Cruttenden ” and some as “ William J. Cruttenden; ” and that these judgments and notes were paid by one and the same person, the person who gave the Card judgment and who executed the Butts mortgage. (See eighteenth and ninete°enth findings of facts.) Whether the appellant, Dyer J. Butts, had actual knowledge of these facts or not, they were relevant to the issue. Standing alone they might not be sufficient to affect him with notice of a judgment docketed against William Cruttenden unless- that was his full name, or knowledge of the facts above stated was brought home to the appellant. Nevertheless in establishing the true name of the debtor, it was competent to show by what name he was known in the community and what he used and otherwise recognized as his true name: Laflin and Rand Co. v. Steytler, 146 Pa. 434, 442 and notes thereto in 14 L. R. A. 690; 2 Bouv. L. Dict. (Rawle) 463; Jones’s Estate, 27 Pa. 336. A fortiori the evidence was admissible in the absence of proof that “ William J.” was the name given him by his parents. Further, it is an admitted fact that Dyer J. Butts had actual knowledge of the Card judgment against “William Cruttenden” when he took his mortgage. If he had actual knowledge that the defendant in that judgment was the person from whom he was about to take the mortgage, or if he had such knowledge as made inquiry a duty, was he not affected with notice of the Card judgment as fully as if in indexing it the middle letter “J”had been included? As to the first branch of this proposition there is no room for discussion. If a subsequent incumbrancer have actual notice of a judgment defectively indexed before his rights attach, it is equivalent to the constructive notice required to be given by the judgment docket: The York Bank’s Appeal, 36 Pa. 458; Smith’s Appeal, 47 Pa. 128: Speer v. Evans, 47 Pa. 141; Fulton’s Estate, 51 Pa. 204; McCray v. Clark, 82 Pa. 457, 461; Hamilton’s Appeal, 103 Pa. 368. If, to bring the case within this principle, it was necessary to show that Butts, the subsequent incumbrancer, was told in so many words that the defendant in the Card judgment was the same person who was negotiating a loan from him, it must be conceded that the proofs introduced by the appellee to affect him with notice of the lien were insufficient. We are not convinced, however, that such proof was required. Proof that brings home knowledge of a fact to a person, if he will but use his senses and reasoning faculties, is in a great variety of cases held to be sufficient to affect him with notice. As long as it is the law that notice of liens defectively docketed is provable by parol (York Bank’s Appeal), why should this common sense principle be wholly ignored in disputes between prior and subsequent lien creditors? There is no evidence that the middle letter “J” was part of the baptismal name of the debtor; nor is there any evidence that he adopted it as an essential part of the designation of himself. It is true he used it on some occasion, but on others, where equally important for his identification, he did not. This, then, is not the case of a note signed with the admittedly true name of the obligor but docketed and indexed with the middle letter left out, or with another letter substituted. In this particular the case differs from Wood v. Reynolds, 7 W. & S. 406, Hutchinson’s Appeal, 92 Pa. 186, and Massey v. Noon, 1 Pa. Superior Ct. 198. But it is urged that the case is ruled by Crouse v. Murphy, 140 Pa. 835, which overruled Jenny v. Zehnder, 101 Pa. 296. We think, however, that the former case is plainly distinguishable from the case at bar. That was a case stated in which it was distinctly admitted that the full name of the debtor was Daniel J. Murphy and that his written and recorded title to the land in question was taken and held in that name. It was held that a judgment against him by the name of “ Daniel Murphy ” upon a note signed in the same way did not bind the land as against a bona fide purchaser for value, without notice, who had made search for judgment against “ Daniel J. Murphy.” It appeared in the present case that at the date of the Butts mortgage, Cruttenden held title in fee to a tract of about 150 acres (the tract from which by the sheriff’s sale the fund in question was realized) and a life estate in a tract of two and one half acres bounding the larger tract on the east. He lived on the smaller tract. The name of the grantee as given in the deed for the larger tract was “ William J. Cruttenden,” but in the same deed the land was described as bounded “ on the east by the lands of ... . William Cruttenden ” and others, this reference being to the smaller tract on which Cruttenden lived, and which he held at the time under a devise contained in his father’s will “ to my son William and his wife .... the premises .... where they now reside containing about two and a half acres.” The appellant’s mortgage included both these tracts and describes the former in precisely the same way it was described in the deed to Cruttenden. As properly found by the court below, in talcing the mortgage he treated the names “ William Cruttenden ” and “ William J. Cruttenden ” as designating the same person. The written and recorded evidence of his title furnished no unequivocal evidence that the latter was his true name. Leaving the language of the will out of consideration as not having any*significance and confining attention to the deed to which a purchaser or incumbrancer would naturally loolc to ascertain how and in what name the land was held, it is seen that in one part he is spoken of as “ William J. Cruttenden,” and in another place as “ William Cruttenden.” The appellant knew that these two names indicated one and the same person, the person with whom he was about to deal. As was said in Crouse v. 'Murphy whoever dealt with him on the credit of his real estate was bound to know what appeared in his recorded title. Having knowledge that there was an unsatisfied judgment against “ William Cruttenden ” we do not think the appellant was justified in acting on the assumption that that was not the “ William Cruttenden ” mentioned in the deed as the owner of one of the tracts upon which he was about to take a mortgage. As pointed out in the opinion of the court below, he evidently felt it was his duty to make inquiry, but unfortunately, instead of inquiring of the plaintiff in the judgment, who was well known and near at hand, he contented himself with the inquiries made of the defendant and his son. We might rest the case here. We do not think any prudent man ought to have been misled by the state of the record. But it will not be out of place to show by his subsequent conduct that the appellant was not in fact misled.

The sheriff’s sale of the land in question was had on writs issued on the Card judgment against “William Cruttenden” and on the judgment entered against “William J. Cruttenden” on the bond accompanying the appellant’s mortgage. (See ninth and twelfth findings of facts.) Long before this the appellant knew that the defendant in the former judgment and his mortgagor were one and the same person (see sixth and seventh findings of facts), and, of course, knew that the owners of that judgment asserted it to be a lien on the land. J. M. Clark, a responsible person who held a judgment against “William Cruttenden ” was prepared to bid, and the appellent knew that he intended to bid enough to cover the Card judgment and the appellant’s mortgage, his own judgment being a later lien. With knowledge of the foregoing facts, the appellant, in effect, silenced Clark by purchasing his judgment, and as a result the appellant and the plaintiffs in the Card judgment were the only bidders. The latter gtopped bidding when a price was reached sufficient to cover their own judgment, assuming it to be a prior lien, and the property was struck down to the appellant for $975, when according to the findings of the court below, it was worth from $2,500 to $2,700. Not until after the deed had been acknowledged and delivered and it was too late to set aside the sale did the appellant give any notice of an intention to contest the priority in lien of the Card judgment. It is urged with much force, and the court below found, that under all the circumstances it was his duty to give such notice earlier, and, therefore, that he is estopped by his silence. “ The distinction .... between the cases where acts or declarations of encouragement are necessary to create an estoppel, and those where mere silence or acquiescence will be sufficient, is one of principle, and each case as it arises must be assigned to one or the other class, according to its circumstances, the chief of which is knowledge or ignorance of the party’s own rights and the other’s action. Encouragement is necessary where the party is ignorant; but knowledge creates the duty to speak, and where that exists, silence is enough to estop: ” Logan v. Gardner, 136 Pa. 588. It does not affirmatively appear that the appellant had knowledge of any fact relative to his right to claim priority that the appellee had not; and as they stood on an equality, so far as knowledge of the facts was concerned, each having levied upon the same property, we cannot say that either owed the other the duty to declare that he would claim priority in the distribution. Therefore, applying the principle enunciated in the last cited case we cannot say that either was estopped. But although the facts above recited are not sufficient to create an estoppel, they tend at least to show that when the appellant took his mortgage he was not misled to his injury by the state of the record.

In view of the foregoing conclusions, it does not seem necessary to take up and discuss separately the thirty-one assignments of error. We have examined them all carefully, and notwithstanding the very earnest and able argument of the appellant’s counsel, we are not convinced that there is any error in the findings of fact or conclusions of law for which the decree should be reversed.

The decree is affirmed and the appeal dismissed at the costs of the appellant.