Richter's Loan Company, Appellant, v. United States of America, Appellee, 235 F.2d 753 (5th Cir. 1956)

Submitted here upon an agreed statement of record on appeal, pursuant to Rule 76 of the Federal Rules of Civil Procedure, 28 U.S.C.A., this appeal involves federal income taxes assessed for the years 1947 and 1950. The question it presents is whether the notice of tax lien filed in the Federal Tax Lien Book 26, at page 195, and indexed on page 45 of the Federal Tax Lien Index Record in the office of the Clerk of the Circuit Court in and for Dade County, Florida, constitutes constructive notice to the defendant, Richter's Loan Company, so as to render the lien of the pledge of certain items of jewelry pledged to it by Joseph Friedlander inferior to the government's prior tax lien against the Friedlanders.

The claim of defendant below was, and here is, that the notice was insufficient for the reason that in it, instead of taxpayers' name being properly spelled "Friedlander", it was misspelled "Freidlander", and, furthermore, the correct address of the taxpayers, 4444 Pinetree Drive, was incorrectly placed above their names, and in the index an erroneous address, 1610 Alton Road, appeared below the names of the taxpayers.

Basing them upon the stipulation of counsel in open court, the district judge made findings of fact¹  and conclusions of law.² 

Appellant urging upon us that since the prime purpose of Sec. 3672, 26 U.S. C.A.³  is to mitigate the rigors of Sec. 3670 by protecting from secret liens the persons described in Subd. (a) of that section, it is essential to the effectiveness of the filed notice that the name of the tax debtor against whom the lien is filed be clearly and accurately shown, cites in support: Continental Investments v. United States (W.Dist.Tenn.), 142 F. Supp. 542 holding that a notice of tax lien filed in the name of "W. B. Clark, Sr." was not sufficient to give notice of a lien against "W. R. Clark, Sr."; and United States v. Ruby Luggage Corp., S.D.N.Y. 142 F. Supp. 701, holding that notice of a prior lien, filed against "Ruby Luggage Corporation", did not give notice of a lien against "S. Ruby Luggage Corporation". So urging, it insists that notice here that a tax lien has been filed against "Joseph Freidlander" is not sufficient to put persons dealing with "Joseph Friedlander" on notice that a lien exists against him.

The United States quotes from Sapp v. Warner, 105 Fla. 245, 141 So. 124, 127, 143 So. 648, 144 So. 481:

"The rule supported by the best authority is that the record is constructive notice to creditors and subsequent purchasers not only of its own existence and contents, but of such other facts as those concerned with it would have learned from the record, if it had been examined, and inquiries suggested by it, duly prosecuted, would have disclosed. * *

"If, in the investigation of a title, a purchaser, with common prudence, must have been apprised of another right, notice of that right is presumed as a matter of implied actual notice. * * * Means of knowledge, with the duty of using them, are in equity equivalent to knowledge itself."

and cites Zaucha v. Town of Medley, Fla., 66 So. 2d 238, and cases from other jurisdictions pronouncing the same rule.⁴  Urging upon us that appellant's contention, under the facts in this case, tithes mint, anise, and cummin, exalts form over substance, it insists that it is a sticking in the bark to say that, under the findings of the court, the filing in this case was not in law and in fact constructive notice to the defendant of the tax claim and lien against the taxpayer Friedlander.

Without engaging in a discussion of the application in situations of this kind of the doctrine of idem sonans,⁵  frequently resorted to in determining the effect of mistakes in the names of parties in the entering, docketing and indexing of judgments, deeds, liens, etc., or attempting to generalize upon the effect of the addition, omission, or substitution of letters in names in such situations,⁶  we think it sufficient to say: that, whether the Florida rule invoked by appellee or the stricter rule on which appellant relies be applied, the slight difference in spelling the name "Freidlander" instead of "Friedlander" could not mislead searchers of the record, who were contemplating doing business with Friedlander; that the notice of the lien was adequate; and that the judgment giving priority to the lien of the United States should be affirmed.

Affirmed.