Fawley v. Bailey
| Decision Date | 29 July 1974 |
| Docket Number | No. 9530,9530 |
| Parties | Roy Raymond FAWLEY, Sr., Plaintiff-Respondent, v. Bob BAILEY, d/b/a B & B Motor Company, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Hubert E. Lay, Houston, for plaintiff-respondent.
Darrell Deputy, Jr., Lebanon, for defendant-appellant.
In this court-tried replevin suit the defendant seeks reversal of the judgment entered against him for $3500.00, contending there was no evidence that the property replevined was in defendant's possession. We affirm.
Plaintiff was the original purchaser of a 1971 Ford pick-up truck, as evidenced by a certificate of title issued by the State of Maryland. In May of 1972 plaintiff moved to this state and the following month he loaned the truck to his brother-in-law for a week. The Maryland certificate of title was usually kept with other motor vehicle titles issued to plaintiff in a cookie jar at his residence. On June 11, 1972, plaintiff acquired information that his brother-in-law had absconded with the truck.
William Rook, a notary public and operator of a used car lot in Lebanon, Missouri, testified he purchased the truck on June 21, 1972, from an individual who signed the Maryland certificate of title 'Roy Raymond Fawley'. At the time the signature was affixed to the title there was no name of buyer inserted in the space provided. Rook said he did not know the person who sold him the truck and did not ask for any identification. Nevertheless, he took the 'seller's' acknowledgement in his capacity as notary public. Plaintiff was not the individual who sold him the truck and signed the certificate of title in blank.
Rook said he caused certain repairs to be made to the truck at a local body shop and thereafter sold the truck to a representative (defendant's son) of B&B Motor. According to Rook the space for the buyer's name on the Maryland title was still blank and he never saw the title when anyone's name was inserted as the purchaser.
The Maryland title, with the name B&B Mtr. Co. of Lebanon described as purchaser, was forwarded to the Missouri Department of Revenue with an application by B&B Mtr. Co. ('by Bob Bailey') for the issuance of a Missouri certificate of title for the truck. The defendant's signature on the application was shown as having been notarized on June 22, 1972. Date of purchase by B&B Mtr. Co. of the truck is shown as June 28, 1972. The Missouri certificate of title was issued June 27, 1972, and describes B&B Mtr. Co. as owner of the truck.
Proceeding under Rule 99, V.A.M.R., and Chapter 533, RSMo 1969, V.A.M.S., plaintiff filed this replevin suit against the defendant, posting his bond for double the alleged value ($3500.00) of the truck. Summons and writ of replevin were served and executed on October 5, 1972, and the defendant delivered to the sheriff his delivery bond as provided in Rule 99.04 and § 533.040. In his answer to plaintiff's petition all of the allegations, including plaintiff's ownership, were denied and defendant further averred he was the lawful owner of the truck by reason of his having 'purchased the same in good faith from one William Rook who had lawful title to said vehicle which was transferred to this defendant.' By reply, plaintiff denied this allegation.
At the trial the defendant offered no evidence except the Missouri certificate of title and stood on his motion for judgment at the conclusion of plaintiff's evidence. The court made a general finding of the issues in favor of the plaintiff and entered judgment against defendant for $3500.00 with interest from October 5, 1972.
We need not here tarry over such matters as (a) an assignment of a certificate of title to a motor vehicle in blank, (b) a notary public's acknowledging an assignment of a motor vehicle title to himself as the purchaser, (c) the insertion of the name of the purchaser on a certificate of title after a seller has assigned the same, (d) the lack of any assignment of the certificate of title from Rook to the defendant, (e) the acknowledgement of defendant's signature on the application for the Missouri title six days before the date shown as the purchase date of the vehicle, or (f) the issuance of the Missouri title one day before the stated purchase date. Cases involving (a), (b), (c), and (d) are collected in Comment, Titles To Used Automobiles In Missouri, 28 Mo.L.Rev. 121 (1963), and § 301.210, V.A.M.S. (1972). The testimony shows, without denial, that the title to the Ford pick-up truck in the instant case was originally in plaintiff. He formerly had the possession of the truck and a valid certificate of title in keeping with the laws of this state. As this court said in an earlier day on similar facts in Payne v. Strothkamp, 153 S.W.2d 402 (Mo.App.1941), (l.c. 405): The fact that the title to plaintiff's truck was of Maryland origin does not alter the necessity of compliance with § 301.210. Lebcowitz v. Simms, 300 S.W.2d 827 (Mo.App.1957). The statute is applicable to all sales made in Missouri, irrespective of the origin of the certificate of title. The purpose of the statute is aimed to hamper traffic in stolen motor vehicles and to prevent fraud and deceit in the sale of used cars and trucks. Nichols v. Tower Grove Bank, 362 F.Supp. 374 (E.D.Mo.1973); State v. Glenn, 423 S.W.2d 770 (Mo.1968). Also see: Albright v. Uhlig, 315 S.W.2d 471 (Mo.App.1958).
We agree that replevin is essentially a possessory action. Dieckmann v. Marshall, 457 S.W.2d 242, 244 (Mo.App.1970); Strothkamp v. St. John's Community Bank, 329 S.W.2d 718, 719 (Mo.1959); Rankin v. Wyatt, 335 Mo. 628, 73 S.W.2d 764, 94 A.L.R. 941 (1934). It is incumbent upon a plaintiff in replevin to plead and prove his right to immediate possession of the property at the time the suit was filed and that the defendant was wrongfully detaining it. Auffenberg v. Hafley, 457 S.W.2d 929, 935 (Mo.App.1970); Citizens Discount and Investment Corp. v. Wood, 435 S.W.2d 717, 722 (Mo.App.1968); Monarch Loan Co. v....
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...property sought to be replevined was in possession of the defendant at the time the suit was commenced." (Fawley v. Bailey (Mo.App.1974), 512 S.W.2d 477, Missouri courts require plaintiff to "stand on the strength of its own title in [a] replevin action and [plaintiff] cannot recover on the......
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