Cornhusker Bank of Omaha v. McNamara
| Decision Date | 12 February 1980 |
| Docket Number | No. 42591,42591 |
| Citation | 205 Neb. 504,288 N.W.2d 287 |
| Parties | The CORNHUSKER BANK OF OMAHA, a Banking Corporation, Appellee, v. Albert McNAMARA, doing business as Mac's Chevrolet-Oldsmobile, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Motor Vehicles: Certificate of Title Act. One holding a lien upon a motor vehicle must, insofar as he can reasonably do so, protect himself and others thereafter dealing in good faith, by complying and requiring compliance with applicable laws concerning certificates of title to motor vehicles.
2. Motor Vehicles: Certificate of Title Act: Statutes. No court shall recognize the right, title, claim, or interest of any person in or to any motor vehicle sold or disposed of, or mortgaged or encumbered, unless there is substantial compliance by such claimant with the provisions of section 60-105, R.R.S.1943.
3. Replevin. The plaintiff in a replevin action has the burden of proof and must recover on the strength of its or his right in or to the property, and not upon any weakness of the interest of the defendant therein.
Ben L. Anderson of Anderson, Stock & Anderson, Lincoln, for appellant.
Michael L. Schleich of Morsman, Fike, Davis & Schumacher, P. C., Omaha, for appellee.
Heard before BOSLAUGH, McCOWN, CLINTON, and WHITE, JJ., and WOLF, District Judge.
This is an appeal by the defendant from the judgment of the District Court in favor of the plaintiff upon plaintiff's action in replevin and ordering that plaintiff recover possession from the defendant of a 1976 Corvette automobile.
The facts are not in dispute. On December 23, 1975, Robert R. Blank purchased the 1976 Chevrolet Corvette two-door coupe from John Craft Chevrolet, Inc., of Omaha, and received possession of the automobile and the manufacturer's statement of origin, which was completed with an assignment by the licensed dealer executed to Robert R. Blank. At the time of such purchase, Mr. Blank was the executive vice president of the plaintiff, The Cornhusker Bank of Omaha; however, the purchase of the automobile was made by Mr. Blank for his personal use. Mr. Blank did not obtain a Nebraska certificate of title, but retained possession of the manufacturer's statement of origin and kept the vehicle in his garage. On April 9, 1976, Mr. Blank sold the vehicle to Michael Daugherty for approximately $8,600. Mr. Daugherty obtained the funds to make the purchase by borrowing $8,600 from The Cornhusker Bank of Omaha. Daugherty executed a note and a security agreement on the 1976 Corvette. Apparently, at the same time, Robert R. Blank executed and acknowledged the second assignment on the manufacturer's statement of origin in Blank, and it was delivered to The Cornhusker Bank of Omaha and retained by the plaintiff with the Daugherty note and security agreement. No Nebraska motor vehicle title was obtained nor was the security agreement filed.
Michael Daugherty's note to The Cornhusker Bank of Omaha was due 91 days after April 9, 1976, with interest at 11 percent per annum. This note was apparently paid with the proceeds of a new note from Daugherty to The Cornhusker Bank of Omaha dated October 11, 1976, in the sum of $10,135.80, which new note required monthly payments of $281.55, commencing November 10, 1976. The note indicated on its face that the 1976 Corvette was collateral, but there is no evidence of any new security agreement or of any filing of the claimed lien. No payments were made by Mr. Daugherty on the new note.
On October 21, 1976, the defendant, Albert McNamara, a licensed automobile dealer, purchased the Corvette from Michael Daugherty by giving Daugherty a check for $8,300 and taking possession of the vehicle. No certificate of title or manufacturer's statement of origin was delivered to Mr. McNamara. Mr. Daugherty promised Mr. McNamara that he would send McNamara the title the first of the week. On Monday or Tuesday McNamara called the Douglas County clerk and determined that there was no lien filed against the vehicle. Later, having discovered that the plaintiff had actual possession of the manufacturer's statement of origin, the defendant made demand upon the plaintiff for the statement, which was apparently refused. Subsequently, Robert R. Blank obtained possession of the manufacturer's statement of origin and had a Nebraska certificate of title issued to the vehicle in his own name and immediately assigned the...
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