Wednesday, December 07, 2016

Misspelled Names and Index Entries

A homeowner called to report that when she searched for her recently-recorded deed on our website, she could not find it, although she did find the mortgage and declaration of homestead that were recorded at the same time. It turns out that her name on the deed was spelled incorrectly. Let’s say the correct name was Hickam, but the deed spelled it Hickham (added a second “h” to the middle of the name).

I told her she should call the lawyer who handled the closing but added, after giving a disclaimer about not providing legal advice, that she still owned the property despite the misspelled name. I told her that people frequently changed their names - usually as a result of marriage or divorce - but continue owning the property without their new name showing up anywhere in the record. In such a case, when the person recorded some other document in the future, they would identify themselves by their current name and add a “formerly known as” or “also known as” to show the two names referred to the same person.

I also told her that while I could not change the recorded document itself, I could add her correctly-spelled name to the index entry for that document even though that spelling of the name did not appear in the document. She asked me to do that, so I did.

The general rule of indexing is to enter the name in the index the way it appears in the document. In this case, we had done that even though the spelling in the document turned out to be incorrect. My rationale for adding the correct spelling of the name to the index entry was that the purpose of the index is to assist researchers in finding documents relevant to their inquiries. Someone researching this person’s property would search by her correctly-spelled name. Such a search would not find the deed since the name on the deed and the resulting index entry was misspelled. I thought it would be better to increase the odds of that researcher finding this deed, and then making his or her own determination of the effect of the misspelled name.

So I guess a corollary of the “index it the way it appears in the document” rule is that it’s OK to index it a little more than that if the extra entry will help someone find the document. Our index entries have no independent legal significance, so adding an additional spelling of the name, even if that spelling is not contained in the document, does no harm.

I will say that my decision to add the extra name was made easier by the presence of the correctly-spelled name in the mortgage and homestead that accompanied this deed. This also is an important reminder for closinging attorneys to closely check the spelling of the grantee name on a deed. The closing attorney is the one who prepares the mortgage and the homestead, and so is more likely to spell the name correctly on those documents. But the deed is prepared by the seller’s lawyer who is not as well-acquainted with the name of the buyer and more likely to spell it wrong. But if the closing attorney misses it and the deed with the misspelled name gets on record, it’s the closing attorney who will have to deal with it. A little extra attention at the closing can save a big headache afterwards.

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