Summary of Orr v. Byers, Court of Appeal of CA, 4th District (1988)
Parties: Orr judgment creditor whose lawyer misspelled the name of the party who lost in the abstract of judgment; Byers subsequent purchaser from judgment debtor. (DF’s also include Elliot and a couple of banks)
Cause of action/remedy sought: The following is an action seeking foreclosure on a judgment lien through declaratory relief.
Procedural History: Trial court held for DF. This court affirms.
Facts: Orr obtained a judgment in excess of $50K vs. Elliott. Written judgment (judgment lien is an effective way to secure payment of a judgment) and abstract of judgment recorded a month later both misspelled Elliott’s name (with only one “t”), and were prepared by PL attorney.
Elliott acquired property subject to the lien (Orr’ judgment lien), then sold it to DF Byers, but the title search failed to disclose the abstract of judgment. The preliminary title report did not identify Orr’s judgment lien against Elliott; hence, the judgment was not satisfied from the proceeds of the sale.
Issue(s): Under CA law, does an abstract of judgment containing a misspelled name impart constructive notice of its contents under the doctrine of idem sonans?
Holding: No. This doctrine did not apply here; to require title researchers to check every possible spelling would be too much of a burden. The burden is on the judgment creditor to take appropriate action to ensure the judgment lien will be satisfied.
Court’s Rationale/Reasoning: Though there is no question that the names Eliot, Elliott and Elliot are idem sonans, use of the doctrine has been limited to establishing sameness of identity, and has never been applied to give constructive notice to good faith purchasers for value in that state.
Ignored the Green case, which allowed same first letter idem sonans, because it did not take into account the burden on searchers to know all the alternative spellings & dispensed with the formalities of record notice. The court also declined to follow Green because idem sonans is not applicable when the written name is material and the court felt the name here was material.
The burden to properly ensure the judgment lien will be satisfied is on the judgment creditor. The procedure was simple. They didn’t have to change the whole system of recording. PL’s attorney just had to spell the damn name right.
Rule: Attorneys should exercise diligence in preparing documents to be recorded.
For a name to be material, a variance must be such as has misled the opposite party to his prejudice.
CA has not enacted idem sonans to extend to give constructive notice to good faith purchasers for value.
Did court avoid issues?: No.