Casper Motor Company v. Marquis

• Decision Date: 03 March 1924
• Docket Number: 1093
• Citation: 31 Wyo. 115,223 P. 764
• Parties: CASPER MOTOR COMPANY v. J. L. MARQUIS
• Court: Wyoming Supreme Court

223 P. 764

31 Wyo. 115

CASPER MOTOR COMPANY v. J. L. MARQUIS

No. 1093

Supreme Court of Wyoming

March 3, 1924

APPEAL from District Court, Natrona County; CYRUS O. BROWN, Judge.

Action by the Casper Motor Company against J. L. Marquis, Sheriff to recover possession of property taken under attachment. Judgment for plaintiff and defendant appeals.

Affirmed.

A. G Vanatta for Appellant.

The law governing conditional sales appears at Sections 4713-14 Comp Stats.; a general provision relating to the filing of instruments intended to operate as a mortgage of personality appears at Sections 4687-88 Comp. Stats.; the transaction here involved a note and an instrument given to secure it; it was not a conditional sale but an absolute sale, secured by chattel mortgage; there was no affidavit to give it validity as a conditional sale; there is no evidence that the attaching creditor or any one else had notice, McLeod signed the notice and registered the car in his name as owner in accordance with law, 3476-3484 C. S.; if the instrument was intended as a conditional sales contract it was void, Furniture Co. v. Opera House Co., 11 Wyo. 144; 70 P. 838, 72 P. 687; Crumrine v. Reynolds (Wyo.) 78 P. 402; Studebaker Co. v. Mau, 14 Wyo. 74, 82 P. 2; no demand was made before suit; the most that can be said for the instrument is, that it is an unrecorded chattel mortgage and void as to creditors and purchasers in good faith. The judgment should be reversed.

Hal Curran and Nichols & Stirrett for Respondent.

The evidence shows the transaction to be a conditional sale under which vendor reserved title; the instrument was not filed or placed of record, the attaching officer was notified that the automobile was not the property of McLeod prior to levy, Wyoming cases cited by appellant are not in point; an attaching creditor is not a purchaser or judgment creditor; one claiming property in the face of a conditional sales contract must be without notice or knowledge of the claim of the third party; this places the burden of proof on claimant; appellant failed to prove absence of notice or knowledge of respondent's interest, but relied solely on fraud which he failed to prove.

BLUME, Justice. POTTER, Ch. J., and KIMBALL, J., concur.

OPINION

BLUME, Justice.

The Casper Motor Company, plaintiff and respondent here, brought an action in the district court of Natrona County against J. L. Marquis, as Sheriff of said County, defendant and appellant, in order to recover possession of a certain Buick automobile, which the said sheriff had then in his possession pursuant to a writ of attachment issued in a case wherein Joe Rodish was plaintiff and one George McLeod was defendant. Judgment was rendered in the lower court in favor of the plaintiff and respondent herein, from which defendant herein appeals.

The Motor Company claimed the property in controversy pursuant to a written conditional sales contract introduced in evidence made with George McLeod, which provides that the title to said automobile was not to pass to the purchaser, but was to remain in said motor company until the car was fully paid for, with the right to take possession thereof upon default in payment or whenever it was taken under execution or attachment. It is not disputed and the testimony shows that at the time of the seizure of the property by said sheriff, there was then due and owing thereunder to the respondent the sum of $ 600 and interest thereon, and hence the default clause in said contract came into operation at the time of the attachment herein. The contract was not, however, placed of record, and the contention herein is as to the effect of that fact and as to the burden of proof on the question of knowledge. Except as otherwise provided by statute, in sales of personal property, when by the terms of the contract of sale the title does not pass until payment is made, and in the meantime the property is to remain the property of the vendor, who in case of default has the right to repossess himself thereof, the vendor may reclaim it, even though it be in the hands of a third party who takes it in good faith and without notice. Grand Rapids Furniture Co. vs. Grand Hotel & Opera House Co., 11 Wyo. 128, 144, 70 P. 838, 72 P. 687. But by section 4713, W. C. S. 1920, it is enacted that "no sale, contract or lease wherein the transfer or title of ownership of personal property is made to depend upon any condition, shall be valid against any purchaser or judgment creditor of the vendee or lessee in possession, without notice" unless the instrument is in writing and duly filed...