Englese v. Hyde

Supreme Court of New Jersey

Decided May 15, 1933

Supreme Court of New Jersey · decided 1933-05-15

Cited by 2 later decisions — most recently October 1969

2 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1933-05-15

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Per Curiam.

¶1 The judgment under review will be affirmed, for the reasons expressed in the opinion of Judge Mackay, above set out.

¶2 For affirmance — The Chancellor, Chief Justice, Trenchard, Parker, Lloyd, Bodine, Donges, Van Buskirk, Kays, Hetfield, Dear, Wells, Dill, JJ. 13.

¶3 For reversal — Uase, Heher, JJ. %.

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Case posture

Posture: On appeal from a judgment of the Supreme Court entered upon order of Circuit Court Judge Mackay, who delivered the following opinion: From the agreed state of facts in this case it appears that on May 14th, 1930, judgment was entered in the Passaic City District Court in favor of Fred T. Hyde against `Virginia Gazella Paralla and John Paralla, first name fictitious, being unknown.' On June 6th, 1930, the judgment was docketed in the county clerk's office, Passaic county, in book 2 of docketed judgments at page 556, and indexed against `Virginia Gazella Paralla and John Paralla, first name fictitious, being unknown.' On August 11th, 1922, Marian S. Beswick conveyed the premises in dispute by deed recorded in book W 29 of deeds at page 588, to `Rocco Parrella and Edith Virginia Gazella Parrella, his wife.' The identity of the judgment debtors and grantees is admitted. On June 21st, 1930, said `Rocco Parella and Edith Virginia Gazella Parella, his wife' executed and delivered by deed of conveyance the lands in question to the plaintiffs herein. Subsequent to the recording of the said deed Hyde caused an execution to be issued on the judgment and the sheriff levied on the premises and advertised the same for sale by virtue of the execution. On November 10th, 1930, the plaintiffs filed bill of complaint in Chancery against Fred T. Hyde for a restraint against the enforcement of the judgment. Vice-Chancellor Bigelow held that an action should be had at law because the Court of Chancery could not settle the question. West Jersey, c. , v. Smith, 69 N.J. Eq. 429 ; 60 Atl. Rep. 757 ; Alpern v. Behrenburg, 77 N.J. Eq. 373 ; 77 Atl. Rep. 803 . Plaintiffs assert and claim that the said judgment of Fred T. Hyde does not constitute a lien on the said lands and this the defendant denies. That is the question to be decided in this case. In the case of Yucker v. Morris, 85 N.J. Eq. 476 ; 97 Atl. Rep. 42 ; reversed in 86 N.J. Eq. 181 ; 98 Atl. Rep. 259 , the dispute was between the Highland Trust Company and the executors of Louisa M. Tournade touching the rights of the executors under a judgment. It appeared that the defendant was known as `T. Edward Morris,' `Edward Morris' and `Thomas E. Morris.' The Court of Errors and Appeals said, in part: `The judgment in the District Court was undoubtedly valid. The designation of the defendant as Edward Morris instead of T. Edward Morris, in the record of the judgment in the Common Pleas Court, will be presumed to have been due to the mistake either of the clerk of the District Court in making out the statement thereof, or of the clerk of the Court of Common Pleas in making his record; since by the statute it is provided that in case of docketing such a judgment the statement is made by the clerk of the District Court, and the entry is made by the clerk of the Court of Common Pleas. Comp. Stat., p. 2003, ¶ 170. `Obviously, the judgment creditor ought not to suffer for this mistake, unless it has resulted in injury to some innocent party. The trust company makes no such claim. It admits that Morris was known by the several names of T. Edward Morris, Edward Morris and Thomas E. Morris. It is not suggested that the trust company was misled by the mistake in docketing, or that it was induced to alter its position, to its disadvantage, by reason thereof. It parted with nothing to get the order on the special master.' There is nothing in this case to indicate that the doctrine of idem sonans was involved, and rightly so, because Thomas E. Morris, T. Edward Morris and Edward Morris are all similar. I do not think this case is in point. In the case of H.R.C. Co. v. Eleanor M. Smith , 242 N.Y. 267 , the court held that `Bess' was a well known equivalent of `Elizabeth' and so recognized. It is true that `Elizabeth,' `Bess,' `Betty,' or `Betsey' would all mean the same, and the doctrine just referred to would apply. In the case before me the situation is different. There is no similarity between the names of `Rocco' and `John.' It cannot sincerely be said, especially when the court does not take cognizance of the middle name, that there is any similarity between `Edith' and `Virginia' or that `Edith' is known as `Virginia' or `Virginia' as `Edith.' In the case of Lembeck et al. v. Barbi, 90 N.J. Eq. 373 ; 106 Atl. Rep. 552 , Vice-Chancellor Lewis said: `Where a mortgage to a brewing company was not constructive notice because recorded in the names of the mortgagors as Barbi, sometimes known as Barboe, so that a search in the real names of the mortgagors or owners, which was Borbely, would not have disclosed it, such mortgage was not constructive notice to a subsequent mortgagee, a building and loan association, though the signatures on the subsequent mortgage looked like Mezk Barbily and Lizi Bourbi.' In the case of Zimmer v. Dunlap, 99 N.J. Eq. 610 ; 133 Atl. Rep. 514 , which was a suit by a mortgagee to restrain a judgment creditor from selling out the premises in question, thereby involving a question of priority of encumbrances, the court said: `Holder of mortgage, executed by Joseph Chiera, held not to have notice of judgments entered and docketed under name of Guiseppe Chiera.' Under the circumstances, I am of the opinion that the plaintiffs are entitled to a declaratory judgment and I will recommend an order to that effect.

Source: CourtListener

Court

Supreme Court of New Jersey

Parallel citations

166 A 468