Bill Dreiling Motor Co. v. St. Paul Fire & Marine Ins. Co.

• Decision Date: 23 June 1970
• Docket Number: No. 23157,23157
• Parties: BILL DREILING MOTOR COMPANY, Plaintiff in Error, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Defendant in Error. . II
• Court: Colorado Court of Appeals

Page 153

472 P.2d 153

28 Colo.App. 318

BILL DREILING MOTOR COMPANY, Plaintiff in Error, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Defendant in Error.

No. 23157.

Colorado Court of Appeals, Div. II.

June 23, 1970.

Maley & Schiff, P.C., by John T. Maley, Denver, for plaintiff in error.

A. M. Alloway, Denver, for defendant in error.

COYTE, Judge.

This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.

The parties appear here in reverse order from their appearance at trial but shall be referred to as they appeared at trial.

The facts may be briefly stated. An automobile, having a Nebraska title with the name of Connie Pavel on its face as the owner, was sold to Omaha Volkswagen, Inc. The title was assigned to Omaha Volkswagen, Inc. Subsequently, this automobile was stolen and plaintiff, an insurer of the vehicle, paid the claim of Omaha Volkswagen, Inc., which then assigned the title in blank to plaintiff. Subsequently, a fraudulent Iowa certificate of title to the vehicle was obtained and it was sold to defendant. Defendant sold it to third parties who obtained a Colorado title based on the fraudulent Iowa title. Dreiling accepted the automobile back upon plaintiff's questioning the right of Dreiling's purchaser to possession of the vehicle. Plaintiff then demanded the vehicle and upon defendant's refusal to deliver, plaintiff instituted this action in replevin to recover the vehicle. At trial plaintiff was successful and defendant now seeks reversal.

Among the several grounds of error alleged, we find one issue raised by defendant as being particularly controlling in this case. This basically involves the nature of a replevin action.

In a replevin action plaintiff cannot rely on defendant's weakness of title to recover. Illinois Building Co. v. Patterson, 91 Colo. 391, 15 P.2d 699. In order to succeed plaintiff has the burden of affirmatively establishing his own title and right of immediate possession to the property in question. Butin v. Rothman, 135 Colo. 477, 312 P.2d 783; Brennan v. W. A. Wills, Ltd., 10 Cir., 263 F.2d 1, cert. den. 360 U.S. 902, 79 S.Ct. 1284, 3 L.Ed.2d 1254. In this particular case, plaintiff has failed to sustain his burden of proof and accordingly judgment in his favor must be reversed.

Our decision is based upon the fact that under applicable Nebraska law, plaintiff failed to comply with the requisite statutory requirements and as a consequence gained no enforceable rights to the vehicle in question. Under R.R.S.1943, Neb. section 60--105, it states:

'* * * (1) No person * * * shall acquire any right, title, claim or interest in or to such motor vehicle * * * until he shall have had issued to him a certificate of title to such motor vehicle * * *. No court in any case at law or in equity shall recognize the right, title, claim or interest of any person in or to any motor vehicle * * * unless evidenced by certificate of title or manufacturer's or importer's certificate duly issued, in accordance with the provisions of this act.'

It is apparent from the facts in this case that although plaintiff procured an assignment of the existing title, it did not obtain a certificate of title in its name to the vehicle in question. Plaintiff argues that the assignment is in sufficient compliance with the Nebraska statute to vest it with enforceable rights to the vehicle. We disagree. As R.R.S.1943, Neb. section 60--106 makes clear, an assignment of title is not the same as issuance of a new certificate of title. This section, which establishes the procedure for obtaining a certificate of title, states in part:

'* * * (1) Application for a certificate of title shall be made upon a form prescribed * * *.

'(2) Such application shall be filed with the county clerk * * *.

'(3) If a certificate of title has previously been issued for such motor vehicle in this state, the application for a new certificate of title shall be accompanied by such certificate of title duly assigned * * *.

'(4) The county clerk shall use reasonable diligence in ascertaining whether or not the statements in the application for certificate of title are true * * *. If he is...