That is a great question, Larry. Unfortunately, I think this is a problem largely created by technology that nobody has bothered to address. To a large degree most of this variations would be covered by the rule of idem sonans.
Idem sonans is a legal doctrine whereby a person's identity is presumed known despite the misspelling of his or her name. The presumption lies in the similarity between the Phonology, or sounds of the correct name and the name as written.
In our old traditional book indexing schemas, these would all likely appear on the same page and it would undoubtedly be the responsibility of the searcher to find them. Unfortunately, computers are much more liberal and less intuitive. I have yet to see a good computer indexing system that takes idem sonans into account in a fashion that is anywhere near as good as the books were.
I am just waiting for a good court case on the subject. Our laws - both statutes and case law - fail to account for new technology. One one hand, though, those who prepare legal documents have a duty to file their documents with the correct name as title is vested. On the other, if they get it close enough that a diligent searcher should have found it, then the filing provides constructive notice and the document is sufficient to encumber the title.
But, just how diligent does the searcher have to be? Do they really have to search every possibly variation of the name? Should they be expected to search "six ways to Sunday" to find someone's mistake?
The rule of idem sonans provided a good starting point for that analysis. However, that fails to take into account the change in indexing systems. If it is really incumbent on the searcher to check every possibly variation, then the computers have not made searching any easier or faster and the searcher is prone much added liability. That should mean that the cost of a search should be going up - both because of the added time and liability. That has not happened. In fact, to the contrary... prices are falling, in part becasue of the faulty assumption that computers have made searching so much easier.
To answer your question - I think that searchers need to be aware of idem sonans and they need to be searching for those variations... at least the obvious ones. But, inevitably, there will be a situation where idem sonans will lead to a conclusion that something that was missed was the responsibility of the searcher. I think the defense will be that it was not properly indexed and with the computer indexing even a diligent search would not have lead to its discovery. How the courts will resolve the issue remains unclear.
Best,
Robert A. Franco
SOURCE OF TITLE
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