Hamilton v. Charles Maund Oldsmobile-Cadillac Co.

• Decision Date: 14 June 1961
• Docket Number: OLDSMOBILE-CADILLAC,No. 10840,10840
• Citation: 347 S.W.2d 944
• Parties: Mary Jane HAMILTON, Appellant, v. CHARLES MAUNDCOMPANY, Appellee.
• Court: Texas Court of Appeals

Page 944

347 S.W.2d 944

Mary Jane HAMILTON, Appellant, v. CHARLES MAUND OLDSMOBILE-CADILLAC COMPANY, Appellee.

No. 10840.

Court of Civil Appeals of Texas, Austin.

June 14, 1961.

Rehearing Denied July 5, 1961.

Cofer & Cofer, Austin, for appellant.

F.L. Kuykendall, Austin, for appellee.

GRAY, Justice.

Appellee, Charles Maund Oldsmobile-Cadillac Company, sued M.W. Hamilton and appellant, Mary Jane Hamilton to recover on a promissory note and to foreclose a chattel mortgage lien on a 1959 Willys pickup truck.

The note is dated January 14, 1959, it was executed by M.W. Hamilton and is payable to appellee. The chattel mortgage is of even date with the note and was executed by M.W. Hamilton. Appellant was not a party to the note or the mortgage.

The pickup truck was purchased from P.K. Williams Motors on January 10 or 13, 1959 for $2,900 cash.

After the suit was filed M.W. Hamilton gave appellee his permission for appellee to take possession of the pickup truck, together with another automobile not in question here. However the pickup truck was in appellant's possession, she refused to deliver it, appellee sequestered it, received bids for its purchase and thereafter sold it for $1,890.

The evidence shows that M.W. Hamilton and appellant married in October 1958 and lived together until on or about January 23, 1959. After their marriage appellant loaned M.W. Hamilton $100,000 which was deposited in an Austin bank and the account was designated "M.W. Hamilton Operating Account." Thereafter and on December 22, 1958, the account being depleted, M.W. Hamilton borrowed $12,500 from the bank and deposited it in the account--appellant said this sum was to pay her back. On January 14, 1959 M.W. Hamilton borrowed $6,000 from appellee and gave the chattel mortgage supra as security to appellee. This sum was deposited in the above operating account. Both M.W. Hamilton and appellant drew checks on the operating account.

The Willys pickup truck was purchased for $2900 cash which was paid out of the above operating account. Both M.W. Hamilton and appellant were present at the time the purchase was made. The certificate of title to the pickup truck was issued January 23, 1959 and listed M.W. Hamilton as owner.

Appellant and M.W. Hamilton separated January 23, 1959, at which time she had possession of the pickup truck and it remained in her possession until it was sequestered. She also received the certificate of title to the pickup truck and retained it until the trial when it was introduced in evidence.

Appellant testified that she did not know about the loan made to M.W. Hamilton by appellee and that she knew nothing about the chattel mortgage given to secure the loan until sometime after January 14, 1959. She also said that she and M.W. Hamilton agreed that the pickup truck was to be hers but did not say when the agreement was made. Her testimony in this respect is not disputed.

On February 25, 1959 M.W. Hamilton applied for a certified copy of the certificate of title to the pickup truck. This certified copy was delivered to appellee and was used by it for the sale of said truck. No lien is shown on the certified copy or the original certificate of title.

M.W. Hamilton did not appear or testify at the trial.

By her answer and cross-action appellant alleged that the pickup truck was her separate property; that the original certificate of title was in her possession and had been since it was issued; that the lien claimed by appellee is not noted thereon and that the said lien is void. She alleged that the writ of sequestration supra was wrongfully issued; that the pickup truck was wrongfully seized and taken from her possession, and that such seizure constitutes conversion. She prayed for judgment that appellee take nothing as against her; that the writ of sequestration was wrongfully issued, and for damages for conversion.

A nonjury trial was had and judgment was rendered for appellee as prayed for and that appellant take nothing by her cross-action.

The trial court filed findings of fact and conclusions of law and among other things he found:

"9. At the time plaintiff loaned to M.W. Hamilton the sum of $6,000 on or about January 14, 1959, notation was made on the certificate of title to the Cadillac showing that M.W. Hamilton was indebted to plaintiff in the sum of $6,000 and that a lien was given on said Cadillac to secure the payment of same. At the time the loan was made on January 14, 1959, a certificate of title covering the 1959 Willys one-ton pickup truck had not been issued to M.W. Hamilton by the Texas Highway Department but same was issued January 23, 1959, and the certificate of title named M.W. Hamilton as the owner of said Willys truck. On the date the loan of $6,000 was made by the plaintiff to M.W. Hamilton a certificate of title covering the Willys pickup truck had not been issued to M.W. Hamilton, and therefore, a notation showing that a lien had been given by M.W. Hamilton to the plaintiff to further secure the payment of said $6,000 loan, did not appear on the certificate of title to the Willys truck, and in lieu of such a notation, the defendant, M.W. Hamilton, gave to the plaintiff a chattel mortgage on said Willys truck to further secure the promissory note executed by M.W. Hamilton to plaintiff on January 14, 1959.

"13. The Court finds that, at the time the 1959 Willys pickup truck was purchased from P.K. Williams Company, both M.W. Hamilton and Mary Jane Hamilton were present at the time the necessary papers were prepared and signed by the parties to said transaction. The Court further finds that the 1959 Willys pickup truck purchased from P.K. Williams Company was not the separate property of the defendant, Mary Jane Hamilton, although she and M.W. Hamilton had an understanding that the Willys pickup truck was to be hers.

"15. After M.W. Hamilton and Mary Jane Hamilton separated the original certificate of title to the Willys truck came in the mail addressed to M.W. Hamilton, 1117 Enfield Road, Austin, Texas, where Mary Jane Hamilton was residing, and she opened the envelope containing said original certificate. From the day said certificate of title came in the mail said certificate of title was continuously in the possession of the defendant, Mary Jane Hamilton, until the trial of this case when it was placed in evidence."

The trial court concluded that the chattel mortgage lien on the pickup truck was a valid and enforceable lien as between M.W. Hamilton and appellee and that under the terms of the mortgage appellee had the legal right to take possession of the truck and to sell the same.

"3. Since the defendant, Mary Jane Hamilton, accepted some of the benefits from the $12,500 loan from the Austin National Bank, Austin, Texas, and from the $6,000 borrowed by M.W. Hamilton from plaintiff, in that said sums were deposited in the 'M.W. Hamilton, Operating Account' in the Austin National Bank, Austin, Texas, and upon which account both M.W. Hamilton and Mary Jane Hamilton wrote checks, she is now estopped from asserting any claim to and against said 1959 Willys pickup truck in view of the fact that the purchase price for said 1959 Willys pickup truck came from money borrowed by M.W. Hamilton from the Austin National Bank, Austin, Texas.

"5. The Court further concludes as a matter of law that since M.W. Hamilton, to whom the certificate of title was issued as owner to the 1959 Willys pickup truck, he, the said M.W. Hamilton, had the right to execute the instrument dated April 27, 1959, introduced in evidence herein, authorizing the plaintiff to take possession of said 1959 Cadillac and 1959 Willys pickup truck and sell them to the highest and best bidder.

"7. The Court concludes, as a matter of law, that, although M.W. Hamilton and Mary Jane Hamilton had an understanding that the Willys pickup truck was to be hers, such understanding did not have any effect upon the rights of plaintiff herein to foreclose the chattel mortgage lien given to plaintiff by M.W. Hamilton on said Willys truck to secure the loan of $6,000 made by plaintiff to M.W. Hamilton on January 14, 1959."

He also concluded that appellant was not entitled to recover damages from appellee.

By appellee's pleadings it prayed for a foreclosure of the chattel mortgage lien on the pickup truck. It filed a general denial to appellants' cross-action and by a trial amendment it alleged that appellant ratified the acts of M.W. Hamilton in borrowing the money from appellee and giving the chattel mortgage

" * * * for the reason that the testimony shows that defendant, Mary Jane Hamilton, used and accepted the benefits of the money loan by plaintiff to her husband, M.W. Hamilton, and which loan was secured by the chattel mortgage on the Willys pickup truck described in said chattel mortgage."

The rights of the parties here must be determined under their right to change the status of the truck from community property to separate property, and the provisions of the "Certificate of Title Act." Art. 1436-1, Vernon's Ann.P.C. That Act relates to the certificates of title to automobiles and as to them it repeals the chattel mortgage registration statutes. It also prescribes the steps to be taken in fixing liens upon motor vehicles. Bank of Atlanta v. Fretz, 148 Tex. 551, 226 S.W.2d 843, Guinn v. Lokey, 151 Tex. 260, 249 S.W.2d 185.

Sections 36, 42 and 44 of the Act provide:

"Sec. 36. Should a certificate of title, 'Duplicate Original' or 'Original,' be lost or destroyed, the owner or lien holder thereof may procure a certified copy of same directly from the Department by making affidavit upon such form as may be prescribed by the Department from time to time * * * provided however, that the...