Croan v. McKinney

• Decision Date: 06 February 1945
• Docket Number: No. 6139.,6139.
• Citation: 185 S.W.2d 768
• Parties: CROAN v. McKINNEY et al.
• Court: Texas Court of Appeals

185 S.W.2d 768

CROAN v. McKINNEY et al.

No. 6139.

Court of Civil Appeals of Texas. Texarkana.

February 6, 1945.

Rehearing Denied February 22, 1945.

Appeal from District Court, Hunt County; Charles Berry, Judge.

Suit by Bill Croan against C. W. McKinney and another to recover possession of truck which defendants were allegedly wrongfully withholding. From a judgment for defendants, the plaintiff appeals.

Reversed and judgment entered for plaintiff.

Thomas & Thomas, of Big Spring, for appellant.

J. Benton Morgan, of Greenville, for appellees.

HALL, Chief Justice.

Appellant instituted this suit against appellees, C. W. McKinney and F. L. Young, purchaser and mortgagee, respectively, of a certain Chevrolet pick-up truck, alleging that he was the owner thereof and that appellees were wrongfully withholding possession of said truck. This cause was filed originally in Howard County, Texas, but in response to appellees' plea of privilege it was transferred to the District Court of Hunt County. In the Hunt County District Court appellees answered claiming ownership of the truck, alleging:

"That Defendant C. W. McKinney in Greenville, Texas, purchased said truck from one Clyde Lenny who represented himself to be the true owner and that as such he had authority to sell same and that his brother-in-law O. D. Odom and he had previously owned it jointly and that he Clyde Lenny had purchased the interest of O. D. Odom and that O. D. Odom had indorsed said certificate of title in blank and properly sworn to same and that the said Clyde Lenny had said truck with him and said certificate of title indorsed in blank by the record owner thereof and other papers relating to former transfers of same and defendant C. W. McKinney inspected same and made reasonable investigation of Clyde Lenny which proved satisfactory and C. W. McKinney paid the full purchase value of same in a competitive market in that others were bidding on said truck at the time of defendant's purchase."

They also answered that they purchased the truck in good faith for value and that appellant was estopped "from claiming title to said truck" for the reason that he "took said certificate of title in blank and failed to have the same put in his own name as purchaser and failed to apply for transfer of certificate of title as required by law", thereby creating "a condition that gave rise to the theft of the certificate of title indorsed in blank and the theft of the truck, and the thief, if he was a thief, who later had said truck and certificate of title indorsed in blank in possession and clothed with all the requirements of the State Statutes under Article 1436, Title 17, of the Penal Code of this State in order to transfer said truck to any innocent purchaser thereof." Upon the issue thus joined in a trial before the court without a jury, judgment was rendered for appellees.

The facts are that one O. D. Odom originally owned the truck in controversy clear of liens, and the certificate of title thereto. On July 21, 1943, Odom sold and delivered the truck to appellant in Howard County, Texas, together with the certificate of title with the transfer on the back thereof signed and acknowledged by Odom but with the purchaser's name left blank. Appellant retained possession of the truck and certificate of title for some twenty-eight days when both were stolen from his premises. Appellant never filled in his name in the blank space in the transfer of the certificate as purchaser of the truck, nor did he file same for registration with the proper authorities. On the date the truck was stolen from appellant, August 18, 1943, Clyde Lenny was working for appellant in his garage as a laborer. Lenny did not work for appellant after the night the truck was stolen but was thereafter in Hunt County some two months, working at a cotton gin, and had in his possession the truck and certificate of title executed by Odom in blank together with all other papers necessary for its operation. Appellee C. W. McKinney, being in the market for a used truck and being advised by Lenny's employer that Lenny had a truck for sale, purchased the truck from Lenny for $775, which was found by the court to be its reasonable cash market value at Greenville, Texas, at the time of the sale. Before McKinney purchased the truck he made inquiry of Lenny's employer with respect to Lenny and received favorable recommendation of him. Appellee F. L. Young, who furnished the greater part of the purchase price for the truck, and who retained a lien thereon, examined and inspected the truck and transfer papers, and Lenny, in his presence, filled in the name of appellee C. W. McKinney in the blank left for name of purchaser. Before the purchase of the truck by McKinney, Clyde Lenny represented to him that he, Lenny, was the brother-in-law of Odom, the original owner of the truck, and that he and Odom owned the truck jointly, that the certificate of title was in Odom's name, that he had purchased the interest of Odom, but that his name was not inserted in the transfer of the certificate of title. On the day of the purchase, some party who represented himself to appellee as Odom and who stated further that he was the brother-in-law of Lenny, took from the door pocket of the truck some papers which he represented as belonging to him.

The trial court found that this party representing himself as Odom, "under the other facts adduced at said trial, may not have been O. D. Odom." Immediately after the sale and upon receipt of the filled-in transfer of the certificate to McKinney, he and appellee F. L. Young paid the entire purchase price to Lenny and immediately filed the transfer of certificate of title with the county Tax Collector of Hunt County, and paid the sales tax and transfer fee. On October 11, 1943, the State Highway Department issued to McKinney and F. L. Young a photostatic copy of the certificate of title showing them as owner and lien holder, respectively. Shortly thereafter appellant located the truck in McKinney's possession and instituted this suit for its recovery.

Appellant's first point is:

"Since the Request for Admissions within ten days of the receipt thereof was delivered to the Appellees December 16, 1943, and the unsworn Answer thereto was not delivered to the Appellant until December 29, 1943, each and every statement of fact set out in the Appellant's Request for Admissions are conclusively presumed to be true as against the Appellees over the Appellees' objection, and cannot be controverted by evidence tending to vary the meaning and effect of such statements.

"And this is true even though the Appellees filed their pleas of privilege in the District Court of Howard County, Texas, where the suit was first instituted, on November 18, 1943, and the cause of Action was under such pleas transferred to Hunt County, Texas, December 29, 1943."

As before stated, this suit was filed originally in Howard County, ...