Crouse v. Murphy

21 A. 358, 140 Pa. 335, 1891 Pa. LEXIS 846

Opinion

Opinion,

Mr. Justice Williams:

The intention to protect an innocent purchaser against secret liens and conveyances manifested itself very early in this state. An act of the colonial legislature passed in 1772The intention to protect an innocent purchaser against secret liens and conveyances manifested itself very early in this state. An act of the colonial legislature passed in 1772

Footnotes

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* made it the duty of “ any judge or other officer of a court of record within this province, that shall sign any judgments,” to enter the date of signing on the margin of the record, and declared that the lien of the judgment thereafter should begin at that date, instead of extending, by relation, to the first day of the term or the return of the original writ. Three years later † it was made the duty of purchasers to record their deeds within six months, and if they failed to do so, their unrecorded deeds were to be held fraudulent and void against subsequent bona fide purchasers and mortgagees. Prior to 1775 there was no duty to record resting on purchasers, and one buying land was bound to investigate the title at his peril: Maclay v. Work, 5 Binn. 154. In 1798 the duration of the lien of a judgment upon the defendant’s land was limited to five years, unless duly revived‡ The act of 1849§ made it the duty of the plaintiff to take notice of a sale of land by his debtor, and provided that, as to a purchaser, the lien of the judgment should be discharged, unless such purchaser was warned by scire facias within five years after he placed his deed upon the record, notwithstanding the judgment may have been regularly revived against the defendant. To facilitate searches, separate judgment dockets were provided for in 1827, and our present system of lien dockets, as judgment indexes, was adopted inmade it the duty of “ any judge or other officer of a court of record within this province, that shall sign any judgments,” to enter the date of signing on the margin of the record, and declared that the lien of the judgment thereafter should begin at that date, instead of extending, by relation, to the first day of the term or the return of the original writ. Three years laterf it was made the duty of purchasers to record their deeds within six months, and if they failed to do so, their unrecorded deeds were to be held fraudulent and void against subsequent bona fide purchasers and mortgagees. Prior to 1775 there was no duty to record resting on purchasers, and one buying land was bound to investigate the title at his peril: Maclay v. Work, 5 Binn. 154. In 1798 the duration of the lien of a judgment upon the defendant’s land was limited to five years, unless duly revived4 The act of 1849 § made it the duty of the plaintiff to take notice of a sale of land by his debtor, and provided that, as to a purchaser, the lien of the judgment should be discharged, unless such purchaser was warned by scire facias within five years after he placed his deed upon the record, notwithstanding the judgment may have been regularly revived against the defendant. To facilitate searches, separate judgment dockets were provided for in 1827,|| and our present system of lien dockets, as judgment indexes, was adopted in 1856.* The act provided “ that the lien of a judgment shall not commence or be continued against any purchaser or mortgagee unless the same be entered in the county where the real estate is situated, in a book to be called the judgment index . . . . , and the plaintiff shall furnish the proper information to enable the prothonotary to prepare said entry.” Among other things, the entry must show the names of the parties against whom a lien is entered. ' The purchaser is bound to take notice of liens appearing on the judgment index, but he is not bound to look beyond it; and, if his search discloses the existence of no lien entered there against his vendor, he .may complete the transaction, and pay over the purchase money in safety. Upon this general proposition there is no difference of opinion. The question presented is, through what modifications must one who proposes to become a purchaser pursue the name of his vendor?

In the case now before us, one Daniel J. Murphy owned a lot of land at the corner of Myrtle and Holley streets, in the city of Philadelphia. His deed for the same was regularly recorded, as was a mortgage given by him for part of the purchase money. He took and he encumbered the title in his proper name as Daniel J. Murphy. Roggenmoser desired to buy the lot. He found the title properly recorded, and encumbered by a mortgage. Turning from the recorder’s office to that of the prothonotary, he caused search to be made for liens on the judgment index against Daniel J. Murphy, and found none. He then completed his purchase, settled the purchase price, and received and recorded his deed. This was in 1888. In June of that year Murphy went to Chicago to reside. In 1889 the plaintiff, who had a judgment against Daniel Murphy, issued his writ of scire facias, and served Roggenmoser as terretenant.

Was the judgment against Daniel Murphy a lien on the lot? It is admitted that Daniel Murphy and Daniel J. Murphy are the same person. It is clear, therefore, that real estate in the hands of that person would be bound. Having signed his name in the form in which it appears on the judgment index, he could not object to the enforcement of the judgment against his property. As between him and his creditor, it is a question of personal identity. But the defendant is not objecting. It is a purchaser who bought after a search of the records, and with no actual notice of the existence of this judgment, who claims protection. If he did all the law required of him, he is entitled to protection against the judgment of the plaintiffs. If he did not, then he must suffer for his want of care in making the search.

The plaintiffs contend that he was bound to take notice of this judgment, because it was a lien against his vendor, and could have been enforced against the land in his hands. It appears in the case stated that Murphy, in the transaction of his business, used his name in various forms. On his sign it was D. Murphy. He gave some notes as Dan Murphy, some as Daniel Murphy, and it is clear that he took and conveyed title as Daniel J. Murphy. In the city directory it appeared, at and for years before the sale to Roggenmoser, as Daniel J. Murphy. If a judgment had been entered on a note signed, “Dan Murphy,” and on another signed “D. Murphy,” there is no reason that can be urged in support of the lien now before us, that could not, with equal force, be urged in support of the lien of both the others. All were signed by the same man, and were for debts due by him. If the creditor has no duty resting on him, but is to be protected because Daniel J. Murphy was his debtor in fact, notwithstanding he did not put his name correctly to the note, then all the forms of the name used in signing the notes stand on the same ground. In order to see the practical operation of such a holding, we have looked into the city directory, and find the name of Daniel Murphy, with various middle letters and without any, occurs twenty times. But “D ” is the initial of David, Dennis, and many other first names besides Daniel. To exhaust the possibilities as to D. Murphy would require searches running into the hundreds.

But without laying too much stress on the argument ah inconvenienti, or the apparent legislative intent, let us glance at our cases bearing upon this question. In several cases, among which are Ridgway’s App., 15 Pa. 177: York Bank’s App., 36 Pa. 458; and Smith’s App., 47 Pa. 128, it has been held that a lien entered in the last name of the defendant, is not a lien on the real estate of the defendant in the hands of bona fide purchasers. For example, a lien entered against the firm of McFall & Martin does not bind the separate real estate of the partners in the hands of purchasers, because of the absence of the first names of McFall and of Martin. Not only must the first name appear, but it must be correct; for in Zimmerman v. Briggans, 5 W. 186, the judgment was entered on a bond. Tbe bond was signed, Jacob Briggans, which was the true name of the obligor. The prothonotary made a mistake, and entered the name in the lien docket as John Briggans. An examination of the files would have shown the mistake, but this court held that subsequent creditors were not bound to go beyond the lien docket, and postponed the judgment, because of the mistake in the first name. It is not enough that names are idem sonans. In Heil’s App., 40 Pa. 453, the true name of the defendant was George P. Yoest. It was entered on the index against George P. Joest. The first name was right. The last name was idem sonans with the right name of the defendant, but it was held that the purchaser had no notice of the lien from the record. The reason evidently is that the record addresses itself to the eye, and not to the ear alone. The purchaser was bound to look under the letter Y, which was the initial letter of his vendor’s name. Not finding a lien there, he was not bound to go further, and the lien was postponed. But in Wood v. Reynolds, 7 W. & S. 406, our precise question was decided. A note was signed by John M. Gruver. By some oversight of the prothonotary the “ M ” was omitted, and the lien entered against John Gruver. A purchaser from John M. Gruver made search for liens against his vendor, but found none, and completed his purchase. We held that he had done all that was required of him, and that the judgment could not be enforced against the land in his hands. This case was followed in Hutchinson’s App., 92 Pa. 186, and the rule distinctly laid down that “ the omission of the middle letter in a name on the judgment index, is fatal to ,-a lien ” as against bona fide purchasers.

From this review of the cases it will be seen that the rule was well settled in this state when the case of Jenny v. Zehn■der, 101 Pa. 296, came before this court. In that case, a different rule was adopted, which is wholly inconsistent with Wood v. Reynolds and Hutchinson’s Appeal, and Myer v. Fegaly, 39 Pa. 429, is cited as authority for it. An examination of the latter case will show that it does not sustain the rule laid down in Jenny v. Zehnder, nor afford it any aid whatever. The case was this: One John Bubb executed a judgment note. The prothonotary of Lancaster county entered judgment upon it against John Bobb. This judgment was held to be notice because the two names are identical. They are different modes of spelling the same name, and, as was said by the court, are idem sonans, at least in the German counties, of which Lancaster is one. The name was found under the proper title in the index, with the correct first name, and with a variation in spelling in the middle letter which made no change in the name as spoken. Similar instances are the names of Kopp and Kupp, and of Kolp and Kulp, which are merely different forms of the same name, with the same initial and the same pronunciation.

It is to be regretted that Wood v. Reynolds and Hutchinson’s Appeal had not been considered in Jenny v. Zehnder. The learned judge of the court below followed the last case faithfully, but we feel constrained to say what he could not, that we prefer and shall follow the old and well-settled line of cases to which we have referred. The rule of Wood v. Reynolds is not only most in harmony with the spirit of our legislation, and with our own decided cases, but it is equitable in its operations. Murphy’s title was on the record. Whoever dealt with him on the credit of his real estate was bound to know what appeared in his recorded title. It was as much the duty of one who was about to trust him with money or goods, because of his ownership of land, to know how and by what name he held it, as it was the duty of one about to purchase the land to make the same inquiries. If the creditor neglected his duty, lie must lose in consequence. If the purchaser neglected his, he must lose. Because the creditor in this case did neglect to examine the record, he has a note signed with only part of the maker’s name, on which judgment has been entered. With no notice of the habit of his vendor to sign notes in several different ways, and with no means of notice of liens but the record, the purchaser examined, exhausted the means of knowledge within his reach, and, finding no lien against Dan iel J. Murphy or D. J. Murphy, settled with his vendor, and took his deed. If one of these parties must lose, in good conscience it should be he whose neglect to avail himself of the information which the record could have given him, made the loss by one or the other inevitable.

The judgment is reversed, and judgment is now entered in favor of the defendant upon the case stated.

Act of March 27, 1772, 1 Sm. L. 390.

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Act of March 18, 1775, i Sm. L. 422.

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Act of April 4, 1798, 3 Sm. L. 531.

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Perhaps, § 8, act of April 16, 1849, P. L. 664.

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Sect. 3, act of March 29, 1827, 8 Sm. L. 819.

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Act of April 22, 1856, P. L. 532.