and re-recorded January 15, 1915. The court, in the former opinion, declares:

"There does not appear to be any testimony showing that the existence of this deed was called to the attention of appellants until its introduction in evidence."

The testimony of F. F. Marshall, who was acting as the attorney for plaintiff, was offered on the second trial. It showed the furnishing to defendants of a supplementary abstract showing the re-recording of this deed.

This court, in its former opinion, recognized the rule that defendants were entitled to a title fairly deducible of record as well as good title in fact; it held that the county recorder was not authorized to make the change in the record. The court further declared: "The re-recording of the deed from Vail to Robben on January 15, 1915, and exhibit thereof to the defendants, would have laid a foundation for maintaining an action wherein, all proper parties defendant having been joined, judgment might have been entered by the trial court, finding plaintiff's title valid, quieting any claims of B. W. Robbins to said premises, establishing of record that the conveyance purporting to be made to Robbins was in fact made to Robben, and decreeing performance by the appellants within a reasonable time or suffer the alternative of a forfeiture.' The court then pointed out that the plaintiff had not elected to pursue the course suggested, but had, in effect, elected to treat the contract as ended by bringing suit to quiet title. The court ruled that defendants, having surrendered possession, were entitled to a return of the money they had paid out; that the defendants' motion for a nonsuit should have been granted; that the trial court should have proceeded to determine the amount the defendants were entitled to

recover.

It distinctly appeared on the second trial of the case that this original deed bore indorsements of the county recorder made in conformity with sections 4137 and 4138 (formerly sections 4241 and 4242) of the Political Code, showing that it was the deed which had been recorded on November 10, 1876, in book 63 of deeds, page 117. The indorsements of the county recorder, made upon this original deed, specified the time of recordation and the place thereof, and these indorsements are shown in the supplementary abstracts covering the second recording of the instrument. On the second trial

of the case it was shown that this abstract was furnished to defendants, and it also appeared that the evidence before the trial court on the first trial of the case showed the same thing. Defendants on receiving the abstract showing the foregoing facts never called for the production of the original deed. They made general objection that title had not been shown. The original deed was introduced as an exhibit on the trial of the case, and the grantee is therein named W. B. Robben.

It is true that in the first opinion of this court it was, in effect, declared that there should have been not only rerecording of the deed from Vail to Robben and the exhibit thereof to the defendants, but that there should also have been a suit to quiet title against the claims of Robbins. [2] While authorities were not cited in support of the position that such an action was necessary, there are authorities to the effect that where a mistake has occurred in the name of a grantee in a deed which is essential to a title and which appears, both in the deed and in the record thereof, an action of the kind suggested by this court is essential. (Walters v. Mitchell, 6 Cal. App. 410, [92 Pac. 315].) The case last cited suggests that a suit in rem will reach such an outstanding claim. But where the plaintiff, as here, has found the original deed, and it is obvious to him that the deed contains no mistake, but that the mistake is in the first recording of it, he could not in good faith swear there was an outstanding claim. But the necessity for maintaining such an action as that referred to disappears, in view of the finding of the trial court, based on evidence offered on the second trial of the case. Finding VIII, made by the trial court on the second trial of the case, is as follows:

"That the complete chain of title of record in said property vested in plaintiff is as follows:

"U. S. Patent to William T. Smith;

"Deed from William T. Smith and Mary Smith, his wife, to W. D. Vail;

"Deed from W. D. Vail to Bank of Dixon;

"Deed from Bank of Dixon to W. B. Robben;

"The Court finds that B. W. Robbins never had any title to said land, record or otherwise.

"The Court finds that at one time subsequent to conveying said land to Bank of Dixon, W. D. Vail made and executed

a deed conveying said land to B. W. Robben; said deed was incorrectly recorded by the County Recorder copying said name Robben as Robbins; said deed from Vail to Robben was subsequently correctly recorded in the office of the County Recorder of Solano County and the re-recording of said deed set forth in said abstract which was furnished to defendants on or about the 4th day of March, 1915; that plaintiff through mesne conveyances, all of which appear of record and are set forth in said abstract, obtained whatever title the said B. W. Robben might have had to said land."

The foregoing finding evidently proceeds on the theory that Vail deeded to the bank before the recording of the so-called deed to Robbins, that the bank continued to hold title, and later, and during the time defendants were objecting to the record of the title, proceeded to convey the title to the plaintiff herein. The original abstract showed the deed to the bank, and a supplementary abstract showed the deed from the bank to the plaintiff herein. The evidence showed these abstracts were furnished to defendants. It further appears that neither of these deeds constituted any part of the evidence as supplied to the district court of appeal on the first hearing. The present appeal is upon a reporter's transcript, which contains all the abstracts furnished defendants.

Appellants refer neither to testimony nor to the absence of testimony for the purpose of showing that the foregoing finding is not supported by the evidence. [3] Their sole point is that what the district court of appeal said in its opinion on the former trial in regard to the importance of the record of the so-called deed to Robbins and the remedy to be pursued to clear the record of a possible claim under that deed was binding on the trial court. Certainly the former opinion did not preclude respondent from showing by evidence, which was not before the district court of appeal, that the so-called deed to Robbins was not important. [4] As stated, the sufficiency of the evidence to sustain the finding of the trial court, hereinbefore quoted, is not questioned in any way, and this being so, the finding is to be taken as true on appeal. (Brovelli v. Bianchi, 136 Cal. 612, [69 Pac. 416]; Kyle v. Craig, 125 Cal. 116, [57 Pac. 791]; Tait v. McInnes, 3 Cal. App. 156, [84 Pac. 674].) [5] These cases establish that it is the duty of the appellant to point out the evidence or the lack of evidence showing a finding assailed is unsup

ported, and that the court on appeal will look only to the objections argued. This finding referred to evidently depends upon evidence consisting of pages of the abstracts which were no part of the record on the first appeal, and this being true, and the finding being unassailed, it is determinative of the case.

In view of the evidence offered at the second trial we would be compelled to hold that if finding VIII of the trial court could be disregarded and plaintiff were compelled to rely upon the record of a deed to Robbins, his title would be good and fairly deducible of record. It is true that the former opinion of the court conclusively determines that "B. W. Robbins" and "B. W. Robben," are not within the rule of idem sonans. [6] Names which have the same pronunciation do prima facie designate the same persons. "But this prima facie case so shown is liable to be much shaken by the very slightest proof of facts which produce a doubt of identity. A well-known writer seems to state the rule on this point very acceptably and clearly: "The probative force of the inference of identity from similarity of names is greatly diminished in force, even to the vanishing point, by introducing into the consideration of the matter facts inconsistent with the truth of the administrative assumption that similar names identify a single individual.' 2 Chamberlayne, Mod. Law of Ev. 1191." (Keyes v. Munroe, 266 Mo. 114, [180 S. W. 863].) The following is a further explanation of the rule: "In the case of Johnson v. State, 65 Fla. 492, [62 South. 655], Mr. Justice Taylor, who delivered the opinion of the court, said: 'Where two names are presented to the consideration of the court, the inference that they designate the same individual is strong in proportion as the difference between the two are slight; and conversely, the inference of identity is weak as the points of difference between the two names are numerous and marked.'"' (Rhodes v. State, 74 Fla. 230, [76 South. 776].) [7] Where the case permits parol evidence, such testimony may show two names to be within the rule although there is a considerable difference in spelling. (People v. Fick, 89 Cal. 149, [26 Pac. 759].) The part which parol evidence may play in establishing identity of pronunciation and hence identity of persons is further explained in the case next quoted from. In Commonwealth v. Warren, 143 Mass. 568, [10 N. E. 178, it was said: "The

had

province of the court and jury in cases like the present is governed by the following rule: [8] 'If two names spelled differently, necessarily sound alike, the court may as matter of law pronounce them to be idem sonans; but, if they do not necessarily sound alike, the question whether they are idem sonans is a question of fact for the jury.'" In Munkers v. State, 87 Ala. 96, 16 South. 358], Clopton, J., said: "Though this is strictly a question of pronunciation when raised by demurrer, it may be treated as a question of law; but in such case the judgment of the court should express the conclusion of law from facts or rules of which judicial notice may be taken. When there is no generally received English pronunciation of the names as one and the same, and the difference in sound is not so slight as to be scarcely perceptible, the doctrine of idem sonans cannot be applied without the aid of extrinsic evidence, unless when sound and power are given to the letters as required by the principles of pronunciation, the names may have the same enunciation or sound." (Veal v. State, 116 Ga. 589, [42 S. E. 705].) The court proceeded to specify names that, as matter of law, been held within the rule, as follows: "Blankenship" and "Blackership," "Owens D. Havely" and "Owen D. Haverly," "Hudson" and "Hutson," "Jeffers" and "Jeffries." It held that "Witt" and "Wid" were the same as matter of law. The names "Pomp Burton" and "Pomp Burden” are within the rule. (Burton v. State, 10 Ala. App. 214, [65 South. 91].) Also "Robert" and "Roberts." (Willis v. United States, 6 Ind. Ter. 424, [98 S. W. 147].) [9] Generally, however, the addition of a letter "s" to one of the two names considered takes them without the rule. (29 Cyc. 276.) The footnotes at page 274 show cases in which the use of the letter is not controlling. Among the cases is cited Seaver v. Fitzgerald, 23 Cal. 85, in which the names "Seaver" and "Seavers" were declared to be substantially the same. The case is cited in Brum v. Ivins, 154 Cal. 17, [129 Am. St. Rep. 137, 96 Pac. 876]. If, in the days when neither deeds nor the records thereof were typewritten, a deed had been made to D. C. Seaver and recorded as a deed to D. C. Seavers, and the transaction had stood unassailed for forty years, D. C. Seaver and his successors dealing with the property, and D. C. Seavers and his successors not appearing at all in the record of title for a period of forty