Bain v. Com.

• Decision Date: 10 June 1974
• Court: Virginia Supreme Court
• Parties: Edward L. BAIN v. COMMONWEALTH of Virginia.

Page 641

205 S.E.2d 641

215 Va. 89

Edward L. BAIN v. COMMONWEALTH of Virginia.

Supreme Court of Virginia.

June 10, 1974.

David W. Mullen, Christiansbur, for plaintiff in error.

Gilbert W. Haith, Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on brief), for defendant in error.

Before SNEAD, C.J., and I'ANSON, CARRICO, HARRISON, COCHRAN, HARMAN and POFF, JJ.

COCHRAN, Justice.

Edward L. Bain was convicted under Code § 18.1--116 ¹ (Repl. Vol. 1960) of fraudulently selling, removing or otherwise disposing of a motor vehicle on which he had given a lien to the National Bank of Blacksburg. We granted Bain a writ of error to the judgment order, entered on a jury verdict, sentencing him to serve six months in jail and to pay a fine of $500.

Richard D. Patton, Assistant Vice President of the National Bank of Blackburg, testified that on April 6, 1972, Bain came to the Bank to obtain a loan. Patton approved a 'debt consolidation loan' in the amount of $2,574.01 and referred Bain to a loan clerk for preparation of the necessary papers.

The Commonwealth, over Bain's objection, introduced into evidence a disclosure statement, a note for the amount of the loan, including interest and costs, and a security agreement under which Bain transferred and assigned his 1968 Volkswagen to the Bank as security for the note. Each document was dated April 6, 1972, and bore a signature which purported to be Bain's.

Patton testified that the loan clerk presented the documents to Bain in Patton's presence, although Patton did not observe the signing of the documents. Patton testified, however, that he could verify Bain's signature on the documents.

Patton also testified that Bain promised to deliver the title to the Volkswagen to the Bank so that the Bank's lien could be recorded thereon. Bain failed to deliver the title, and defaulted on the note after making two monthly payments.

In December, 1972, Patton asked Bain to produce the Volkswagen. Bain did not comply, explaining that he had traded in the vehicle for a new car. Clifford E. Bishop, a used car dealer, testified that he had traded Bain a Mercury for the Volkswagen, that the title to the Volkswagen had contained no record of any lien, that he was unaware of any security interest in the car, and that value of the Volkswagen at the time of trade was approximately $900.

We find no merit in Bain's contention that the trial court erred in admitting into evidence the disclosure statement, security agreement and note. The authenticity of Bain's signature on the documents could be shown by direct or circumstantial evidence. Harlow v. Commonwealth, 204 Va. 385, 389, 131 S.E.2d 293, 296 (1963). See McCormick on Evidence, § 222 (2d ed. 1972); 7 Wigmore on Evidence, § 2131 at 572 (3d ed. 1940). There was ample circumstantial evidence to authenticate Bain's signature. Bain negotiated a loan immediately prior to the preparation of the documents, the loan clerk prepared the documents in Bain's presence, Bain received the benefit of the loan and he made two payments in amounts specified by the note. Moreover, Patton said that he could verify Bain's signature on each of the three documents. These circumstances provided sufficient authentication of the documents for the trial court to admit them into evidence.

We also reject Bain's argument that the trial court erred in refusing to give Instruction B--1, which would have defined the lien contemplated by Code § 18.1--116 as one noted upon the title certificate for the Volkswagen. The language of the statute does not permit such a restrictive definition.

The Bank acquired a valid security interest in the Volkswagen when it entered into the security agreement with Bain. Although Code § 46.1--70 (Repl. Vol. 1972) provides for the recording of security interests created in a motor vehicle after the original issuance of the title, the purpose of this statute is to provide a simple means for third party purchasers or creditors to ascertain the existence of a prior security interest. Maryland Credit Fin. Corp. v. Franklin Credit Fin. Corp., 164 Va. 579, 583, 180 S.E. 408, 409--410 (1935). But even though the Bank's security interest was unrecorded, and therefore unperfected as to third parties, the Bank was entitled to rely upon and enforce its security agreement against Bain. As Bain's sale of the Volkswagen deprived the Bank of its right to sell the collateral upon default, the Bank's security interest comes within the purview of Code § 18.1--116.

The trial court committed no error in overruling Bain's motions to strike the Commonwealth's evidence. There was ample evidence from which a jury, properly instructed, could find Bain guilty of violating the provisions of Code § 18.1--116. It was not necessary for the Commonwealth to adduce direct evidence that the Bank had not given written consent to Bain to sell the Volkswagen. Under the provisions of the second paragraph of Code § 18.1--116, Bain's failure to surrender the car upon demand was prima facie evidence of his violation of the statute. The evidence was rebuttable, but Bain adduced no evidence in his own behalf. Moreover, there was other circumstantial evidence that the Bank gave no written consent for the sale of the vehicle. Patton testified that when he asked Bain for the Volkswagen he informed Bain that the Bank had...