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Orr v. Byers | 244 Cal. Rptr. 13 (1988)

Before purchasing a property, the potential buyer usually performs a title search. The title searcher examines indexed records and recorded documents to identify any problems in the title and to see whether there are any competing interests in or encumbrances on the property. But should the buyer be charged with notice of a document that didn’t show up in the title search because it misspelled the property owner’s name? The court faced that question in Orr versus Byers.

In October of 1978, James Orr obtained a legal judgment for more than fifty thousand dollars against William Elliott. Elliott’s name is spelled with two Ls and two Ts. But when Orr’s lawyer prepared the written judgment, he misspelled Elliott’s name with two Ls and one T.

The next month, the Orange County Recorder’s office recorded an abstract of judgment that created a judgment lien in Orr’s favor against Elliott. But Elliott’s name was spelled incorrectly on the abstract too, once with one L and one T, and once with two Ls and one T. As a result, the abstract wasn’t listed in the Orange County grantor-grantee index under the correct spelling of Elliott’s name.

Elliott later obtained title to property that was subject to Orr’s judgment lien. Elliott sold the property to Rick Byers in July of 1979. But because of the misspellings in the grantor-grantee index, the title search didn’t reveal the abstract of judgment. Accordingly, the title report didn’t reflect Orr’s judgment lien, and the proceeds of Elliott’s sale of the property to Byers weren’t used to satisfy the lien.

In February of 1981, Orr brought an action in California state court against Elliott, Byers, and Byers’s banks, seeking judicial foreclosure of the judgment lien. At trial, Orr relied on the doctrine of idem sonans, which provides that if someone’s name has been written incorrectly, the person’s identity is presumed if the pronunciation of the name as written sounds like the correct pronunciation. Orr claimed that under idem sonans, Byer had constructive notice of the judgment lien that affected Elliott’s property even though the abstract of judgment had been recorded with Elliott’s name misspelled. The trial court rejected Orr’s argument and entered judgment for Elliott, Byers, and the banks. Orr appealed to the California Court of Appeal.

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