person's name, and that a mistake with | Sparks v. Sparks, 51 Kan. 195, 32 Pac. 892; reference thereto is not material. Nolan v. Taylor, 131 Mo. 224, 32 S. W. 1144; King v. Hutchins, 28 N. H. 561; Dilts v. Kinney, 15 N. J. L. 130; Western Loan & Sav. Co. v. Silver Bow Abstract Co. 31 Mont. 448, 107 Am. St. Rep. 435, 78 Pac. 774; Smith v. Holmes, 54 Mich. 104, 19 N. W. 767; Security Abstract of Title Co. v. Longacre, 56 Neb. 469, 76 N. W. 1073; Hershiser v. Ward, 29 Nev. 228, 87 Pac. 171; United States Wind Engine & Pump Co. v. Linville, 43 Kan. 455, 23 Pac. 597; Mallory v. Ferguson, 50 Kan. 685, 22 L.R.A. 99, 32 Pac. 410; Lattin v. Gillette, 95 Cal. 317, 29 Am. St. Rep. 115, 30 Pac. 545; Geller v. Hoyt, 7 How. Pr. 265; Clute v. Emmerick, 26 Hun, 10; Weber v. Fowler, 11 How. Pr. 458; Haverly v. Alcott, 57 Iowa, 171, 10 N. W. 326; Hibberd v. Smith, 50 Cal. 511; Gillespie v. Rogers, 146 Mass. 612, 16 N. E. 711.

Johnson v. Day, 2 N. D. 295, 50 N. W. 701; Pollard v. Fidelity F. Ins. Co. 1 S. D. 570, 47 N. W. 1060; Stever v. Brown, 119 Mich. 196, 77 N. W. 704; Mosely v. Reily, 126 Mo. 124, 26 L.R.A. 721, 28 S. W. 895; Beattie v. National Bank, 174 Ill. 571, 43 L.R.A. 654, 66 Am. St. Rep. 318, 51 N. E. 602; Fincher v. Hanegan, 59 Ark. 151, 24 L.R.A. 543, 26 S. W. 821; Huston v. Seeley, 27 Iowa, 190; Pinney v. Russell & Co. 52 Minn. 443, 54 N. W. 484; Miltonvale State Bank v. Kuhnle, 50 Kan. 420, 34 Am. St. Rep. 129, 31 Pac. 1057; 21 Am. & Eng. Enc. Law, 307; 16 Am. & Eng. Enc. Law, 114; Laflin & R. Powder Co. v. Steytler, 14 L.R.A. 690, note; People v. Lake, 110 N. Y. 61, 6 Am. St. Rep. 344, 17 N. E. 146; Sullivan v. State, 6 Tex. App. 333, 32 Am. Rep. 580; Allen v. Taylor, 26 Vt. 599; Felker v. New Whatcom, 16 Wash. 178, 47 Pac. 505; Long v. Campbell, 37 W. Va. 665, 17 S. E. 197; State v. Martin, 10 Mo. 391; Re Snook, 2 Hilt. 568; Bletch v. Johnson, 40 Ill. 116; Games v. Stiles, 14 Pet. In April, 1907, defendant Benson was a 327, 10 L. ed. 478; Fink v. Manhattan R. bonded abstracter, and as such prepared and Co. 29 N. Y. S. R. 153; Erskine v. Davis, certified an abstract of title for plaintiff to 25 Ill. 255; Milk v. Christie, 1 Hill, 102; a certain lot which defendant was about Morgan v. Woods, 33 Ind. 24; Mutual L. to purchase from one William G. Rideout. Ins. Co. v. Doherty, 23 C. C. A. 144, 39 At said time, there was in said county a U. S. App. 468, 77 Fed. 853; Rooks v. judgment docketed against William J. RideState, 83 Ala. 80, 3 So. 720; State v. Smith, out upon which there was due the sum of 12 Ark. 622, 56 Am. Dec. 287; Hicks v. $87.58. The abstracter knew neither the Riley, 83 Ga. 332, 9 S. E. 771; Langdon v. judgment debtor nor any person of the People, 133 Ill. 382, 24 N. E. 874; Scho- name of Rideout within the county, and field v. Jennings, 68 Ind. 232; Ross v. State, certified that there was no judgment of rec116 Ind. 495, 19 N. E. 451; State v. Bow-ord "against any of the within-named granman, 78 Iowa, 519, 43 N. W. 302; Nicodemus v. Young, 90 Iowa, 423, 57 N. W. 906;

Mr. T. A. Toner also for respondent.

Burke, J., delivered the opinion of the court:

tees,

which are liens on said premises." On the strength of this abstract,

129, and White v. Himmelberger-Harrison | omits from a search of the real estate title Lumber Co. 42 L.R.A. (N.S.) 151.

As to use of initials instead of Christian name in publication of process, see note to Butler v. Smith, 28 L.R.A. (N.S.) 436.

In a recent case, Loser v. Plainfield Sav. Bank, 149 Iowa, 672, 31 L.R.A. (N.S.) 1112, 128 N. W. 1101, it was held that where a man is commonly known as "William" McGregor, the record of a mortgage in that name will be notice to a subsequent mortgagee taking a conveyance from him in the name of "J. W." McGregor, at least where the mortgage or the chain of title contains internal evidence that the grantor of the two instruments is the same.

And it has been held that the mere fact that the name of an heir is listed in the probate records in a certain form does not prevent a record of a conveyance by him of his interest in the estate, in another form, from being notice, to subsequent purchasers, of the former conveyance. Ibid.

And in another case, Stephenson v. Cone, 24 S. D. 460, 26 L.R.A. (N.S.) 1207, 124 N. W. 439, it was held that an abstracter who

of Edward J. B., a record of judgments against Ed. J. B. is liable to one having a right to rely upon his abstract who is injured by such omission, if the judgments are against the one whose title he was searching.

In First Nat. Bank v. Hocoda Mercantile Co. 169 Ala. 476, 32 L.R.A. (N.S.) 243, 53 So. 802, Ann. Cas. 1912B, 599, it was held that the recording of a chattel mortgage signed "W. H." McDonald did not constitute constructive notice to a subsequent purchaser in good faith that the instrument was executed by one whose name was William N. McDonald, and whose regular way of signing his name was "W. N." McDonald.

In Wicker v. Jenkins, 49 Tex. Civ. App. 366, 108 S. W. 188, where the statute required abstracts of judgments for record to state the names of the plaintiff and defendant, it was held not sufficiently complied with by giving the name of a plaintiff as W. B. F. Wicker, instead of W. F. B. Wicker, and no lien was held to be created thereby. J. T. W.

the case at bar. In a case note at page 415 of volume 7 L.R.A. (N.S.) will be found a résumé of most of the cases in point upon this question. A perusal thereof will impress the reader with the necessity of con

plaintiff purchased the lot, and claims that | gagor's name as would the judgment in he was later forced to pay the amount due upon the judgment because said judgment was a debt of William G. Rideout which had been erroneously docketed against an imaginary William J. Rideout. Plaintiff had judgment in the court below, and de-sidering the circumstances of each case, fendant appeals.

1. But one question is presented to us for decision, namely, whether it was the duty of the abstracter to show that there was a judgment docketed against William J. while making certificates relative to William G. Respondent relies largely upon the case of Johnson v. Day, 2 N. D. 295, 50 | N. W. 701. He admits in his brief, however, that there has always been a division of the authorities as to the effect of the omission of, or mistake in, the middle initial, and further admits that in the case of Dutton v. Simmons, 65 Me. 583, 20 Am. Rep. 729, the court says: "But there has been a growing dissatisfaction with the doctrine of the ancient cases upon this subject; and in this state (and Massachusetts) the old doctrine must be regarded both by the precedents and practice as overruled." The trial court in his memorandum decision, although attempting to follow the Johnson-Day Case, recognizes the weight of the contrary doctrine and the fact that in the Johnson-Day Case the question at issue was between the parties to a mortgage; the rights of third persons not being involved.

Appellant cites a long line of cases showing that the ancient rule that the court would pay no attention to a middle initial has been largely, if not entirely, abrogated by the modern decisions. This is, of course, a natural consequence of the increase of population and the frequence with which persons appear with both Christian names and surnames identical. Aside from the distinction as to the age of the authority, there is a still further division of the cases along the lines of the extraneous knowledge of the person making the examination. Thus, if William G. Rideout had been served in a civil action with a summons in which his name had been erroneously written William J. Rideout, it is not likely that the proceedings would have been held to be a nullity, because certain duties devolved upon him by reason of the fact that he was made the recipient of a copy of the summons. For this very reason the case of Johnson-Day, supra, is not in point in this case, it being evident that a notice relative to mortgage wherein there was a description of the land, and page where it might be found in a certain book, and other means of identification, would not as readily be vitiated by an erroneous initial in the mort

rather than relying upon any rule of law. The rule is likewise given in Cyc.: "The erroneous omission or introduction of a middle initial in defendant's name, or a mistake in such middle initial, will prevent the judgment from having effect as a lien." 23 Cyc. 1358 (ii) and note 40; Crouse v. Murphy, 140 Pa. 335, 12 L.R.A. 58, 23 Am. St. Rep. 232, 21 Atl. 358; Hutchinson's Appeal, 92 Pa. 186; Davis v. Steeps, 87 Wis. 472, 23 L.R.A. 818, 41 Am. St. Rep. 51, 58 N. W. 769; Wicker v. Jenkins, 49 Tex. Civ. App. 366, 108 S. W. 188; notes in 14 L.R.A. 394; and 7 L.R.A. (N.S.) 416; Warvelle, Abstracts, §§ 466, 467; Johnson v. Wilson, 137 Ala. 468, 97 Am. St. Rep. 52, 34 So. 392; Johnson v. Hess, 126 Ind. 298, 9 L.R.A. 471, 25 N. E. 446; Phillips v. McKeig, 36 Neb. 853, 55 N. W. 259; Grundies v. Reid, 107 Ill. 304.

As stated in the note in 23 L.R.A. 818: "The general rule by which an initial of a middle name is regarded as no part of the name is denied application to the case of docketing a judgment for constructive notice."

Judgments stand in a class by themselves because there is no extraneous data from which the examiner can determine the identity of the person. In this it differs from chattel mortgages, where the searcher always has the description of the property covered thereby as a guide to aid him in determining the identity of the person executing the same. For these reasons we limit the application of this rule to judgments alone, leaving other questions to be determined when reached. In the case at bar there is nothing to indicate that William J. was the same and identical person as William G., the middle initials being different. Had one or the other of the initials been entirely omitted, and either the grantee of the deed or the judgment debtor been shown as simply William Rideout, a different state of facts would exist, and possibly it would be the duty of the abstracter to show the judgment. Upon this, however, we express no opinion. Under the existing facts, however, he was confronted with a name which, though similar, was yet complete, and distinctly different from the one for whom his search was being conducted, and he could not be expected to index this different name. If plaintiff's contention were adopted, it would cast upon the abstracter not only the duty of making search

for similar names, but also the burden of
determining the validity of the lien created
by these judgments. This is not the con-
templation of the law. The plaintiff herein,
being a subsequent purchaser without notice,
was under no obligation to pay such judg- |
ment. 16 Am. & Eng. Enc. Law, 133, note
1, and cases cited.

The judgment is reversed, with instruc- requiring strictness of proof in criminal tions to dismiss the action.

precedent where we have no statute requir- | name of Daniel J. Murphy; and in the opining such a conclusion. ion it is said that a judgment entered in the name of D. Murphy or Dan Murphy or

The Massachusetts rule is that, whether the record is right or wrong as a compliance | Daniel Murphy is no notice to one who with the statute, the loss must fall upon the purchaser. This is on the theory that the fault, if at all, must be held to be in the law as to constructive notice. If the law does not properly safeguard the purchaser, the fault is charged to the purchaser or the law, and not to prior parties. In Illinois the rule is that the law protects the purchaser of property by the title which "appeared of record," unless there was notice of something to the contrary. "Therefore one who made a loan in reliance on the record title was protected against a prior judgment against the owner by another name, although he was as well known by the latter as by the former" (note in 7 L.R.A. (N.S.) at page 417, and Grundies v. Reid, 107 Ill. 304), although in the case announcing that rule the decision could have been put upon common-law grounds that "Charles E." and "Conrad E." were not from constructive notice to be presumed to be the same person.

Maine, in Dutton v. Simmons, 65 Me. 583, 20 Am. Rep. 729, departed admittedly from the common law, and "the law of the Supreme Court of the United States, and of many, if not most, of the state courts in this country," and followed Massachusetts, which state had in Com. v. Hall, 3 Pick. 262, held that "Charles Hall" and "Charles James Hall" are to be regarded as different

names.

takes title from the same party as Daniel J. Murphy. And this is the only logical outcome of the holding in the instant case. If the change of the initial is material, to be consistent its omission must likewise be held to be fatal, and consistency is no less a jewel in judicial opinions than in demeanor. But in the recent decision of Burns v. Ross, 215 Pa. 293, 114 Am. St. Rep. 963, 7 L.R.A. (N.S.) 415, 64 Atl. 526, that same court holds "the record of a judgment against one whose Christian name is 'Francis,' if indexed under the name of 'Frank,' charges a prospective purchaser from the judgment debtor's heirs with notice of the existence of the judgment," on common-law reasoning concerning Christian names and their derivation, though in that jurisdiction the common law is repudiated as to middle names, or initials for middle names, the common law recognizing no middle name.

It is upon these Pennsylvania cases and that of Johnson v. Hess, 126 Ind. 298, 9 L.R.A. 471, 25 N. E. 445, heretofore discussed (which really turned upon a difference in Christian names, instead of the use of initials for middle names), upon which the text at 23 Cyc. 1358, is wholly based. It reads: "Further, the erroneous omission or introduction of a middle initial in defendant's name, or a mistake in such middle initial, will prevent the judgment from having effect as a lien."

Pennsylvania, in 1844, departed from the common-law rule in a per curiam opinion This classifies and differentiates authority (Wood v. Reynolds, 7 Watts & S. 406) apparently sustaining the majority holding. holding that a judgment entered against It seems to me apparent that the weight of "John M. Gruver" in the name of "John authority, as well as of reason, is to the Gruver" did not impart constructive notice. contrary, and supports the judgment renThere was no discussion of cases attempted. dered. Nearly all the other jurisdictions It was later followed by a per curiam opin-hold to the common-law theory as declared ion in Hutchinson's Appeal, 92 Pa. 186, in Games v. Stiles, 14 Pet. 322-327, 10 L. cited in the majority opinion. These cases ed. 476-479, that "the law knows of but were later overruled by Jenny v. Zehnder, one Christian name, and the omission or 101 Pa. 296, wherein an entry on the judg- insertion of the middle name or of the inment index as "F. Zehnter" was held to be itial letter of that name is immaterial." notice to a purchaser of title from "John 21 Am. & Eng. Enc. Law, 2d ed. 307, says Jacob Frederick Zehnder," an extreme hold- that "it is generally held that the law does ing even under common-law doctrine. In not recognize a middle name, and therefore this case an opinion was written. Later in a legal instrument an omission of the the Zehnder Case was expressly overruled middle name or initial, or a mistake in such in Crouse v. Murphy, 140 Pa. 335, 12 L.R.A. name or initial, or the insertion of a middle 58, 23 Am. St. Rep. 232, 21 Atl. 358, and initial in a name which has only two memthat court reverted to its early rule, and bers, is of no importance,”—citing cases held that where record title was in the name from many jurisdictions: Fallon v. Kehoe, of Daniel J. Murphy, a judgment against | 99 Am. Dec. 347, and note (38 Cal. 44); Daniel Murphy did not attach to defeat | Note to Choen v. State, 21 Am. Rep. 181; a purchaser who, subsequent to the judg- Illinois C. R. Co. v. Hasenwinkle, 15 L.R.A. ment and in ignorance thereof, bought from (N.S.) 129, and note (232 Ill. 224, 83 N. the judgment debtor by deed taken in the E. 815); Fincher v. Hanegan, 24 L.R.A.

543, and note (59 Ark. 151, 26 S. W. 821); | traneous data from which the examiner Beattie v. National Bank, 174 Ill. 571, 43 can determine the identity of the person. L.R.A. 654, 66 Am. St. Rep. 318, 51 N. E. In this it differs from chattel mortgages, 602, and note to Burns v. Ross, 7 L.R.A. where the searcher always has the descrip(N.S.) 415. tion of the property covered thereby as a guide to aid him in determining the identity of the persons executing the same. these reasons we limit the application of this rule to judgments alone, leaving other questions to be determined when reached."