Downer v. Bermingham

71 Colo. 245 | Colo. | 1922

Mr. Justice Allen

delivered the opinion of the court.

This is an action in replevin. The plaintiff sues as mortgagee under a chattel mortgage of the property sought to be replevied, and relies on the mortgage. The defendánt is the ex-officio Sheriff of the City and County of Denver, but the action is defended for a judgment creditor at whose instance the defendant levied execution against the property. There was a verdict and judgment for plaintiff, and defendant brings the cause here for review.

The plaintiff’s chattel mortgage was recorded prior to the inception of the lien of the judgment creditor. The mortgage, and the record thereof, gives the name of the mortgagor as “Thomas F. Bermingham.” Defendant contends, in effect, that the mortgage is invalid and its record is not constructive notice, as to him, because the real name of the mortgagor, being the same person as the judgment debtor, is “Thomas F. Birmingham.” Defendant admits having knowledge of the record of the chattel mortgage in question after making an examination of the records of the county clerk and recorder, and there is no claim of having been misled by reason of the substitution of an “e” for an “i” in the mortgagor’s name. There is a conflict in the evidence as to whether the second letter in the mortgagor’s name is an “e” or an “i” but this is not a material issue. Bermingham and Birmingham, from all that appears in the record, are one and the same name, but if different names, then they must be regarded one and the same under the rule of idem sonans.

A record of a mortgage given by Thomas F. Bermingham is constructive notice of one given by Thomas F. Birmingham. A party does not have his record rendered a nullity simply because he, or another party to the instrument or proceeding, has misspelled a surname in some manner not clearly misleading. The validity of records and their effect as to giving constructive notice does not depend on accurate spelling. In Jenny v. Zehnder, 101 Pa. 296, the substitution of“t” for “d” in Zehnder’s surname was not considered to be a fatal error. The doctrine of idem sonans applies to records. Bloomer v. Cristler, 22 Colo. App. 238, 123 Pac. 966. This being true, the chattel mortgage in question was valid and its record was constructive notice as to the judgment creditor.

The defendant, in his answer, also attacked the chattel mortgage as a fraudulent conveyance. As to this branch of the case, the record discloses no reversible error.

The judgment is affirmed.

• Mr. Chief Justice Scott and Mr. Justice Burke not participating.