Bickart v. Sanditz

• Decision Date: 05 March 1927
• Citation: 136 A. 580,105 Conn. 766
• Court: Connecticut Supreme Court
• Parties: BICKART v. SANDITZ ET AL.

136 A. 580

105 Conn. 766

BICKART v. SANDITZ ET AL.

Supreme Court of Errors of Connecticut.

March 5, 1927

Appeal from Superior Court, New Haven County; Arthur F. Ells, Judge.

Replevin to recover two motortrucks by Maude H. Bickart against Adolph Sanditz and others. From a judgment for defendants, plaintiff appeals. No error.

On December 21, 1921, plaintiff owned a bottling establishment in the city of Waterbury, consisting of machinery, tools, and equipment used in the bottling business, and three automobile trucks, all of which personal property she sold to one Samson Yolen and gave to him the exclusive possession thereof. At the time of such sale Yolen gave a purchase-money mortgage to plaintiff, covering the property in question, which mortgage contained a replacement clause. The mortgage was attested by one witness only, and was recorded in the personal property records in the office of the town clerk at Waterbury.

Two of the trucks covered by the mortgage were later burned, and the insurance money covering them was paid to plaintiff as mortgagee. Thereafter Yolen purchased two other trucks for use in such business, and these trucks are the subjects of this action. Subsequently to such purchase, Yolen, with the consent of plaintiff, sold and delivered the property covered by the chattel mortgage, together with the two trucks thus bought by him, to one G. Yolen and one Charles Kraft, who continued to conduct the bottling business.

By several transfers of possession title to and possession of the trucks came to defendants, who sold the same to one Louis Yolen, under a conditional bill of sale, which bill of sale was duly recorded in the office of the town clerk at Waterbury. Louis Yolen having thereafter defaulted in the payments provided for in such conditional sale contract defendants, pursuant to the provisions of such conditional sale contract, repossessed themselves of the trucks. Before such repossession of the trucks by defendants, plaintiff brought an action against Samson Yolen for the foreclosure of the chattel mortgage given to her by him, and in the decree of foreclosure the superior court ordered the sale of such interest as Samson Yolen had in the trucks in question. At the date of such foreclosure the trucks replevied were not in the possession of Samson Yolen or of any of his successors in the bottling business, but were in the possession of Louis Yolen, defendants' conditional vendee. On the foreclosure sale the property covered by the mortgage was sold to one Monroe Bickart husband of plaintiff. Thereafter plaintiff brought this action of replevin against defendants, claiming that she was lawfully entitled to the immediate possession of the trucks.

Plaintiff at no time was in possession of the mortgaged property between December 20, 1921, the date of her chattel mortgage and April 17, 1925, the date when the trucks were replevied and at no time was in possession of the trucks involved in this action before the date of the replevin.

From the finding it further appears that the court found that the defendants are bona fide purchasers, upon a valuable consideration, of the trucks in question, and had no actual notice of any dealings of plaintiff with Samson Yolen with regard to the same, or of any court proceedings with regard to the foreclosure.

Upon the foregoing facts found, the court reached the following conclusions: (1) That the chattel mortgage from Samson Yolen to plaintiff was a valid mortgage between the parties themselves and their successors in interest in the property mortgaged, who took the same thereafter with knowledge of the chattel mortgage; but (2) that as to the trucks replevied, such chattel mortgage was void and ineffective as to bona fide purchasers from and creditors of Samson Yolen the mortgagor, and his assigns, in that the trucks are not within the purview of sections 5206 and 5208 of the General Statutes; (3) that the mortgage was ineffective as to subsequent purchasers without knowledge, because it was attested by one witness only; (4) that defendants, as bona fide purchasers of the trucks in question, were not affected by a sale under foreclosure in an action brought by plaintiff against Samson Yolen; and (5) that the receipt of the insurance money by plaintiff for the trucks burned precluded plaintiff from claiming the trucks subsequently purchased by Samson Yolen and the subject of this action, against defendants.

Raymond E. Hackett, of Stamford, and Ulysses G. Church, of Waterbury, for appellant.

Max Traurig, of Waterbury, for appellees.

WOLFE, J. (after stating the facts as above).

Plaintiff seeks corrections of the finding in both striking out several of the paragraphs of the finding made by the court and substituting others in her draft-finding, and also by adding thereto certain other paragraphs. An examination of the evidence discloses that no fact is found without evidence, and no material fact established by uncontradicted evidence has been omitted. The finding is therefore not to be corrected as requested.

It appears that the motor trucks described in the chattel mortgage were never placed in the possession of plaintiff but were retained in the possession of Samson Yolen, the mortgagor, at all times up to their destruction by fire, and that the trucks subsequently purchased by him and involved in the replevin were never in the possession of plaintiff, but passed by sale to several different purchasers and finally to defendants, who are bona fide purchasers, upon a valuable consideration and without notice of any claim against them by plaintiff, until demand was made for the return of the trucks in the present action. Plaintiff does not question the rule of law that while the retention of possession of personal property by the vendor after a sale does not affect the rights of the parties as between themselves, it renders the sale invalid as against subsequent attaching creditors of the vendor, without notice, and bona fide purchasers without notice who secure the property. Patchin v. Rowell, 86 Conn. 372, 376, 85 A. 511. While conceding the general rule to be as just stated, plaintiff contended in this court, as she did...