A question was recently posed in the forums regarding nicknames, aliases, and misspellings. Just how much responsibility does the abstractor have to find documents indexed under names similar to how title is vested?  The rule of idem sonans provides some guidance, but the problem is much more tricky today than it was before the counties all adopted computer indexes.

Idem sonans means "sounding the same."  Under the doctrine of idem sonans, a mistake in the spelling of a name is immaterial if both modes of spelling have the same sound.  Thus if the doctrine were strictly applied, a searcher may be responsible for "McLarren" or "MacClarren" when title is actually vested as "McClarren."  But, just how applicable is the doctrine today?

It is my opinion that idem sonans is no longer a practical guide to defining the limits of the abstractors' liability to find documents when they are not indexed as title is vested.  Mainly there are two reasons for my position.  First, the indexes are not designed to facilitate searching for names that merely sound alike, as they once were.  And, Second, it is easy today for a drafter to obtain the proper name as it is vested and there is little excuse for filing a document with any other variation.

I have vented ad nauseum about the flaws associated with computer indexing.  But, there is no doubt that when it comes to similar sounding names, the computers are not adequate replacements for the old book indexes.  In the old books, my examples above would all have been indexed on the same page, or couple of pages.  That was a paramount feature of the books. 

Unfortunately, that search for "McClarren" is much more complicated in the world of computerized indexing.  A search for "McClarren" would obviously miss "McLarren" and "MacClarren."  A short form of "Mc" would still miss "MacClarren" and it would return an unwieldy number of matches from "McAllen" to "McReynolds." 

If the particular computer allows "wild card" searches, it may be somewhat easier because you could search for "M*Larren"... but what if the name is indexed as "McClarron" or "McClaren?" Ugh!  Now maybe we could try "M*Lar," but that might return names like "Molar," "McLarson," or "Millardy."  Wild cards and shortforms are great... but as time goes on, there will be more and more names in the index that will further compound the problem.  It will get harder and harder to use even these search features to return a sufficiently narrow group of results without excluding relevant information.

This doesn't even begin to address the problem with first names that don't match.  Once you figure out the right magic formula for the last name, you still have to contend with variations of the first names.  For example, is "Robert" indexed as "Bob?"  Is your head starting to hurt yet?

Now consider this... in the old book indexes, most of these possible variations would have been indexed together, on the same pages. You might have to check two different pages (if my memory serves me).  You would have to check one page for the "MacC-McC" names, and one for the "MacL-McL" names.  On those pages you would just have to look down the first name columns where you would find both "Bob" and "Robert," or any other variation you could think of.  It was easy.

Expecting the abstractor to find all possible variations of a name, or worse yet - a misspelling, places an unrealistic burden on the searcher.  The cost of a title search would be untenable.  Of course, with the online access available today, it is rather easy for the drafter of the documents to find the correct name as title is vested and prepare them accordingly.  It makes much more sense to place the onus on the drafter today.

Interestingly, there is a court case in Ohio that provides some relief from the unrealistic expectations of a rigid application of idem sonans.  The Court of Appeals, First Appellate District refused to place such a heavy burden on abstractors - especially in an index searchable only by name.  Experts testified that "the doctrine of idem sonans should not be applied today as a standard for determining the marketable title of real estate on the basis of irregularities in last names or surnames, and that by custom it is not applied by abstractors in southwestern Ohio."  The issue in dispute was the name "Bolan" incorrectly spelled on a judgment lien as "Bolen." 

We hold that the doctrine of idem sonans is inapplicable to names that are misspelled in judgment-lien name indexes.
...
To impose rigidly the doctrine of idem sonans to name indexes no maintained for judgment liens would tax all land abstractors beyond reasonable limits and require them to be poets, phonetic linguists, or multilingual specialists. The additional time necessary to examine name indexes under such a stringent doctrine would make the examinations financially prohibitive.
...
We find instead a conditional application [of idem sonans], which includes as a factor whether the individual is otherwise identified...

Nat'l Packaging Corp. v. Belmont, 547 N.E.2d 373 (Ohio App. 1st Dist. 1988).

The court still did not answer the question of exactly how far the responsibility of the abstractor should be extended but it does seem to recognize the limitations of name-only indexes.  I believe it still leaves room for interpretations based on local customs... or "would a diligent abstractor in the community have found it?"  Determining that local custom can be a difficult inquiry and it should still give us all cause to be as diligent as is practical. 

I think that this case indicates that we have shortcomings in our indexing systems.  In some regards, the computer indexes have been a huge step backwards that has potentially created additional liabilities for abstractors.  I hope that this case may provide some basis for future decisions, in other jurisdictions, that will take into account that abstractors are not psychics and that the indexes have placed practical limitations on the ability of searchers to uncover inconsistencies in the indexing of names. 

I'd also like to thank Doug Gallant for his contributions to this blog and many that have come before.

Robert A. Franco
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