Butler County Finance Co. v. Miller, 6827

• Decision Date: 07 December 1949
• Docket Number: No. 6827,6827
• Citation: 240 Mo.App. 954,225 S.W.2d 135
• Parties: BUTLER COUNTY FINANCE CO. v. MILLER.
• Court: Missouri Court of Appeals

Page 135

225 S.W.2d 135

240 Mo.App. 954

BUTLER COUNTY FINANCE CO. v. MILLER.

No. 6827.

Springfield Court of Appeals, Missouri.

Dec. 7, 1949.

Green & Green, West Plains, for appellant.

Robert L. Hyder, West Plains, for respondent.

VANDEVENTER, Presiding Judge.

This is an action in replevin for an automobile. The petition is in conventional form. The answer denied that plaintiff was entitled to the possession and asked damages in the sum of $250.00. The court found for defendant and allowed him $75.00 as attorney's fee but no damages. Plaintiff appealed.

The facts are that about November 29, 1947, one Ezra Warren purchased a 1939 Plymouth Coupe, from Gillette & Willard, used car dealers at West Plains, Missouri, and gave them his note for Four Hundred Eighty Seven and 80/100 ($487.80) Dollars as part payment therefor. He also executed a chattel mortgage on the coupe to secure the note.

The note was immediately sold to plaintiff, and endorsed without recourse. It was payable in installments and default was made in the payments which caused plaintiff, on June 9, 1948, to institute this action to recover the mortgaged car.

About the first of February, 1948, the Plymouth coupe was sold to the defendant, Paul T. Miller, the certificate of title properly endorsed and delivered to him, but it did not bear the certification of the Recorder of Deeds that a chattel mortgage on the motor vehicle had been filed in his office. This certificate of title was sent in to the Commissioner of Motor Vehicles and a new one issued to Mr. Miller and it bore no notation of an existing chattel mortgage. The defendant did not actually know of the existence of the mortgage until the day before this suit was filed.

The court made the following finding of fact:

'The Court finds that because the Chattel Mortgage referred to in evidence was not noted on the Certificate of Title to automobile in question, such chattel mortgage is void as to this defendant.'

In 1939, the Legislature passed an act, Laws of Missouri, 1939, Page 278, Mo.R.S.A. Sec. 3488, making it the duty of the Recorder of Deeds, at the request of 'the mortgagee', or 'his assignee' to certify on the certificate of title of a mortgaged motor vehicle that such chattel mortgage had been filed, the date, the amount of the mortgage and the name of the payee. When the mortgage is released the Recorded shall also note the fact. This statute further provides:

'* * * A mortgage on a motor vehicle shall not be notice to the whole world, unless the record thereof is noted on the certificate of title to the mortgaged motor vehicle, as herein provided. Provided, however, that the provisions of this section shall not apply to chattel mortgages given to secure the purchase price of any part thereof or to a motor vehicle sold by the manufacturer or their distributing dealers, or to a chattel mortgage given by dealers to secure loans on the floor plan stock of motor vehicles.'

In the 1939 Revised Statutes (Official Edition) this section appears with the following proviso:

'* * * A mortgage on a motor vehicle shall not be notice to the whole world, unless the record thereof is noted on the certificate of title to the mortgaged motor vehicle, as herein provided: Provided, however, that the provisions of this section shall not apply to chattel mortgages given to secure the purchase price of a motor vehicle sold by the manufacturer or their distributing dealers, or to a chattel mortgage given by dealers to secure loans on the floor plan stock of motor vehicles. (Laws, 1939, p. 278).'

The word 'of' in the original act was clearly a typographical error, should have been 'or', and could have been corrected by the Revision Commission, Section 685, R.S.Mo.1939, Laws of Missouri, 1939, Page 480, Sec. 685, but they had no authority to make the change that appears in Section 3488.

In 1941, Laws of Mo.1941, Page 328, Sec. 3488, the Legislature corrected its own error by changing 'of' to 'or' in the proviso to the original enactment and while said section has since been amended as to recording fees, Laws of Mo.1947, Vol. 2, Page 221, Section 3488 the proviso remained the same and now is:

'* * * A mortgage on a motor vehicle shall not be notice to the whole world, unless the record thereof is noted on the certificate of title to the mortgaged motor vehicle, as herein provided. Provided, however, that the provisions of this section shall not apply to chattel mortgages given to secure the purchase price or any part thereof or to a motor vehicle sold by the manufacturer or their distributing dealers, or to a chattel mortgage given by dealers to secure loans on the floor plan stock of motor vehicles.'

It is urged that this proviso applies only to new cars purchased from a manufacturer or a distributing dealer. We cannot assume that the legislature did a foolish and useless thing by repealing and re-enacting this statute in 1941. Before that time it covered cars bought from a manufacturer or...