Blinn v. Chessman, 49 Minn. 140

Blinn v. Chessman

49 Minn. 140 | Minn. | 1892

Dickinson, J.

The land, the title to which is the subject of this action, was purchased by the defendant George Chessman from one Forrest in 1857. A deed of conveyance was executed to the defend*145ant, and be caused it to be recorded. It appears from the record of the deed, and was found by the court, that in the deed the name of the grantee was written “George Cheeseman,” the name being so written in the instrument as recorded, as well as in the index of the same. It was found as a fact that the defendant knew, when he accepted and recorded the deed, that his name therein was thus erroneously written. In 1860 he left this state, and has ever since been a nonresident thereof. In 1882, one Leonard, claiming to own the property, commenced an action in the district court against George Cheeseman and one J. S. Hubbard to determine their adverse claims to the property. The summons in that action was served by publication, and upon proof of default on the part of the defendants the cause was heard, and judgment was rendered and entered adjudging the said Leonard to be the owner of the property in fee simple, and that neither of the defendants in that action had any interest in it. The plaintiff has succeeded to whatever title Leonard had, and 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 case justified the finding that when the defendant accepted the deed and placed it on record he knew that his name as grantee was erroneously written in it. It may be presumed as a fact that a grantee who personally accepts and retains a deed of conveyance knows the contents of it. See Tolbert v. Horton, 31 Minn. 518, (18 N. W. Rep. 647.) Whether, in such a case, the presumption would be conclusive, we do not consider. Assuming that it may be overcome by proof to the contrary, the evidence in this case opposed to the inference to be drawn from the deed and from the facts above stated was not of controlling force.

The court was right in treating the judgment as binding upon this defendant, so far as concerned his interest in this land. This conclusion is not based upon the ground of the likeness of the two names, either in spelling or in sound; but .upon the ground — upon which also the decision of the court below was placed — that the defendant is to be deemed to have adopted the name of Cheeseman for the purpose of acquiring and holding the title to this land, and he *146can have no reason to complain that he is so designated in legal proceedings calling in question the validity of the title so acquired and held. From the fact that this was not his true name it does not follow that the court did not acquire jurisdiction. If he had assumed this name, or any other, generally, and for all purposes, and especially if he had come to be known by the name assumed, there would be no doubt that legal proceedings against him in such name would, in general, be sustained. The name is not the person, but only a means of designating the person intended; and where one assumes and comes to be known by another name than that which he properly bears, that name may be effectually employed for the purpose of designating him. If such a name is employed in legal process or notices, whether served personally or by publication, — where such service is authorized, — the notice is effectual; the person who has assumed the name is presumed to understand that the process or notice addressed in that name is addressed to him.

In this case it is probably true that the defendant did not intend to change his name, nor to adopt for general purposes the name of Gheeseman-, but he did — if he knew the misnomer, as we must assume he did — most effectually assume that name for the purpose of taking and holding the title to this land. He not only accepted the conveyance made to himself by that name, but he placed it on record, for the purpose, and with the effect, presumably, of giving notice to 4he world that the title had been so conveyed and was so held. He must be deemed to have understood that thereafter persons becoming interested in the land would consult the record, and might be expected to act upon the notice thus communicated to them. If in .legal proceedings concerning the title process or notice should bead-dressed to “George Gheeseman,” he should respond, if he would project his rights, although that was not his true name. In proceedings concerning this land it would be at least quite as likely that the name disclosed by the record as the grantee would be used in a summons or notice intended to be addressed to such grantee as that the record should be disregarded, and the true name of the defendant used. Hence there was as much reason why his attention should be arrested by the name of George Gheeseman in a published sum*147mons or notice as there would be if his^true name were used. He had placed himself under the necessity of having regard to the former as well as to the latter. 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. That name was a sufficient designation of this defendant in the action instituted by Leonard, and the misnomer did not prevent the court acquiring jurisdiction.

(Opinion published 51 N. W. Rep. 666.)

It is contended that the publication of the summons in the former action was not authorized, because the return of the sheriff, preliminary thereto, was that he had been unable to find “the within-named defendants George Cheeseman and J. S. Hubbard” within his county. It is said that this was in effect only a return that both of the defendants could not be found. The return should not be so construed, although that is its literal meaning. That would make, the return wholly immaterial, and irresponsive to the duty resting upon the officer. It was his plain and well-understood duty to serve the summons upon each of the two defendants, and, if either of them could not be found, to so make return, stating particularly the fact. This return was an official act, and in its construction regard should be had to the maxim omnia rite acta prcesumuntur. The language of the return, although it involves the common grammatical error of a negative pregnant, is not to be construed so as to convict the officer of either a total disregard of duty or of an attempt to deceive and mislead the court by the statement of a wholly immaterial fact,— that both of the defendants could not be found. Unless the return was dishonestly made, its obvious meaning was that neither of the defendants could be found; the statement that the defendants could not be found being made with respect to both of them. It should be so construed.

A point was made in respect to the sufficiency of the affidavit, preliminary to publication, which we regard as not deserving serious consideration.

Order affirmed.