First National Bank v. Hacoda Mercantile Co.

53 So. 802 | Ala. | 1910

EVANS, J.

On the 12th day of August, 1907, one W. N. McDonald executed a mortgage to the First National Banlc of Opp, Ala., and conveyed, among other things, one sorrel horse about seven years old. The name “W. H. McDonald” was signed to the mortgage, and the mortgage was duly recorded in the office of the probate judge of Geneva county on the 13th day of August, 1907. The said W. N. McDonald lived in Geneva county at the time the mortgage was executed and recorded. The said, horse was in the possession of the said McDonald, and was owned by him at the time the said mortgage was executed and recorded. In the fall of 1907, without paying any amount on said mortgage debt, the said mortgagor sold the said horse to defendant, the Haeoda Mercantile Company. The only notice, if any, that defendant had that said W. N. McDonald had executed the said mortgage was that given by the filing of said instrument for record and the recording of the same. The said McDonald’s name was William N. McDonald, but his regular way of signing his name ivas “W. N. McDonald.” The only real question raised in the case is whether or not the filing and recording of this mortgage Ayas notice to the subsequent purchaser of the horse that W. N. McDonald had executed said mortgage.

Appellant insists that, by analogy to the requirements of the la,AV as to names in a criminal prosecution, the insertion or omission of or mistake in a middle name or initial is immaterial — citing Edmonson v. State, 17 Ala. 179, 52 Am. Dec. 169; Diggs v. State, 49 Ala. 311; Pace & Cox v. State, 69 Ala. 231, 44 Am. Rep. 513; Sewell v. State, 69 Ala. 231, 44 Am. Rep. 513; Sewell v. State, 82 Ala. 58, 2 South. 622; Rampey v. State, 83 Ala. 31, 3 South. 593. In this latter case the court says: “As the law recognizes but one Christian name, the insertion or omission of a middle name or initial is entirely immaterial.” This ‘was where the name G. H. Croft Avas drawn on the grand jury, and G. N. Croft appeared and answered thereto and was made foreman of the grand jury. The court held that the difference in the middle initial was immaterial, and said that the insertion of a middle name made no difference. Such was the rule at common law, if initials Avere there recognized. But we are of opinion, and so hold, that' our recording act, together with modern business custom or usage, require a modification of the common-laAV rule as to Avhat constitutes a name, if the comm on-laav rule recognized initials at all. It is the rule in modern business dealings to sign the initials, only, of one’s Christian name. Such being the case, it is very necessary for the speedy transaction of business that the initials should be correctly given, where one so signs his name, before one should be held to knoAV Avho the person signing Ayas, merely from the record of his conveyance. It is true that some courts have held otherwise, contending that the property described, together with the identity of the surname, was sufficient to put the subsequent purchaser on notice of facts which, if followed up, would lead to knowledge of the real fact. But is it not a better rule to require the person taking a conveyance to see that it is correctly signed than to permit him to take a conveyance incorrectly signed, and charge some subsequent purchaser who has been misled by the name signed to pay for the property twice, or pay for it once and then lose it?

There are but 26 letters in our alphabet, and one of these must constitute the initial of every name in the land. The same letter is the initial of a vast number of different names; hence it can be easily seen that, where a person signs his Christian name by initials only, each initial should be correctly written. The common law rule of but one Christian name and one surname, and that a wrong middle initial or name is immaterial (if the rule applies to initials), will certainly not answer the modern requirements of business with reference to recorded conveyances being notice to the world of the conveyancer and the property conveyed. Suppose there were in the same county a W. N. McDonald and a W. H. McDonald, who were well known to a party about to make a purchase; would the fact that he saw on the record a mortgage signed “W. H. McDonald” be notice to him that the mortgage was in fact made by W. N. McDonald, any more than if any other name than that of W. N. McDonald had been signed to it? We think this is substantially the rule laid down in the case of Johnson v. Wilson & Co., 137 Ala. 472, 34 South. 392, 97 Am. St. Rep. 52, where the court says: “It may be, and doubtless is true that the mortgage executed by J. W. Dixon to the defendant under the assumed name of A. W. Dixon is a valid mortgage inter partes; but it does not follow from this that the plaintiffs who subsequently purchased it from Dixon under his true name, are chargeable with constructive notice of the mortgage, which was recorded correctly. In other words, the record of a mortgage executed in the name of A. W. Dixon is not notice that J. W. Dixon executed it. The names are as entirely different as are the names of J. W. Dixon and J. W. Smith.” When we come to the real truth of the matter, and cease to attempt to follow antiquated dogma, there is just as much difference betunen the names “J. W. Dixon” and “J. A. Dixon” as there is between the names of “J. W. Dixon” and “A. W. Dixon,” and this fact is recognized in the case of Martin v. State, 144 Ala. 8, 40 South. 275.

We doubt if the common-law doctrine of one Chistian name and one surname ever really applied (though it has been held to have done so) where the Christian name was signed by initials only. The better rule undoubtedly is that, where the Christian name is signed by the initials only, the initials taken all together in their regular order should be considered as the Christian name for the purposes of signature. We are of opinion that the cases of Johnson v. Wilson & Co., and Martin v. State, supra, substantially hold to this vieAV. We therefore hold that the recording of the mortgage signed “W. H. McDonald” Avas not constructive notice of the fact that the mortgage Avas executed by W. N. McDonald.

The other point raised by appellant is Avithout merit. An inspection of the mortgage, Avhich is sent up by the trial court Avith the record, in accordance Avith the rule provided in such cases, shows clearly that the mortgage Avas signed by W. H. McDonald, and there Avas nothing for the jury to decide on that point, and the bill of ex-eeptions shows that it was properly recorded. The court is presumed to know the letters of the alphabet when they are plainly written. There might arise cases of doubt, but this is not one of them. The court correctly charged that the mortgage and the record of the mortgage was signed “W. IT. McDonald.”

Affirmed.

Dowdell, C. J., and Anderson and Sayre, JJ., concur.