Interstate Securities Co. v. Barton
| Decision Date | 17 July 1941 |
| Parties | INTERSTATE SECURITIES COMPANY, A CORPORATION, RESPONDENT, v. JOE BARTON, APPELLANT |
| Court | Missouri Court of Appeals |
Rehearding Denied August 5, 1941.
Appeal from the Circuit Court of Texas County.--Hon. W. E. Barton Judge.
AFFIRMED.
Judgment affirmed.
John P Moberly and L. N. Searcy for appellant.
(1) When a chattel mortgage is given on a motor vehicle the law requires that the encumbrance and the amount thereof and the person or entity to whom payable shall be stamped on the certificate of title. Unless this is done it is not notice to third parties. Laws of Missouri, 1939, pp. 278, 279; 7 Blashfield, Encyclopedia of Automobile Law, p. 109, Sec. 4359. (2) It is the duty of the court sitting as a jury to pass on all issues raised by the pleadings and the evidence. Hall v. Bramell, 87 Mo.App. 285; Dillard v. McClure, 64 Mo.App. 488; Smith v. Mallory, 188 S.W. 934; Hamilton v. Clark, 25 Mo.App. 428; Auto Co. v. Lloyd, 299 S.W. 230. (3) Where the only claim for possession is for the purpose of enforcing a lien, such as a chattel mortgage, the jury or the court acting as a jury should determine the amount of the lien and declare that possession is given for the purpose of enforcing the lien in the stated amount. Where this is not done the judgment is erroneous. Cases cited supra (2).
Hiett, Covert & Hiett, Hubert E. Lay and William R. Collinson for respondent.
(1) Where the lower court has made no findings of fact and no declarations of law have been asked or given, the appellate court must assume that the lower court correctly applied the law and found as he did on the weight of the evidence, which findings in a law action are binding on the appellate court, and, in this case, leaves nothing for review. Foulke v. Hickman, 259 S.W. 496; Rep. Nat. Bank v. Interstate Prod. Corp., 282 S.W. 1033; Welp v. Bogy, 8 S.W.2d 599. (2) Assignments of error which are not pressed in appellant's brief under points and authorities are abandoned. Novosel v. Mid-West Life Ins. Co., 276 S.W. 87; Moore v. Great A. & P. Tea Co., 92 S.W.2d 912. (3) The filing of a true copy of a chattel mortgage in the office of the recorder of deeds of the county in which the mortgagor resides, as this plaintiff did, imports notice to the world and the mortgage is a valid lien against the mortgaged property in the hands of the defendant. Section 3486, R. S. Mo. 1939. (4) Plaintiff's mortgage was clearly given to secure the purchase price of an automobile sold by the distributing dealer of the manufacturer, and comes within the exception clause of Section 3488. Section 3488, R. S. Mo. 1939. (5) After condition broken, mortgagee is regarded as absolute owner, at least for purpose of possession and foreclosure, of the mortgaged chattels, and replevin is the proper remedy to enforce his right of possession. Zahner Mfg. Co. v. Harnish, 24 S.W.2d 641; First Nat. Bank v. Witherspoon L. Co., 90 S.W.2d 453; Day v. Nat'l Bond & Inv. Co., 99 S.W.2d 117. (6) Defendant's contention that the judgment should determine the amount of plaintiff's lien and declare that possession is given for the purpose of enforcing said lien, is without authority, and such a judgment would violate the statute. Sec. 1801, R. S. Mo. 1939. Furthermore, the value of the property was found by the court to be less than the plaintiff's lien, and defendant cannot, therefore, claim to be prejudiced by the judgment, even if his contention was correct. Pierce v. Lowder, 54 Mo.App. 25; Meslow v. Crawford, 190 S.W. 391, l. c. 393. (7) Since no findings of fact or conclusions of law were asked or given, it must be presumed that the court passed on all the issues in the case, and since no damages were assessed, it must be presumed that the court did not find the plaintiff damaged. Authorities cited under (1), supra. The judgment is in the statutory form, but even if not, defendant cannot possibly claim to be prejudiced by the omission of damages. Sec. 1801, R. S. Mo. 1939; Central Mo. Trust Co. v. Wolfert, 198 Mo.App. 85, 90; Hayes v. Hulet, 14 S.W.2d 699; Hopper v. Hopper, 84 Mo.App. 117; Stroud v. Houston, 70 Mo.App. 647, 650.
--This is an action in replevin filed by plaintiff in the Circuit Court of Texas County, for the purpose of recovering possession of a Studebaker automobile. A jury being waived, the cause was tried at the November, 1940 Term of said court, resulting in a judgment for plaintiff. Whereupon, defendant duly appealed to this court.
The petition and the accompanying affidavit are in conventional form. Among other things the petition alleges that on the 19th day of September, 1940, it was lawfully entitled to the possession of a certain automobile to the value of $ 775, the automobile being specifically described; that afterwards, on the same day, the defendant wrongfully took said property from the possession of said plaintiff and still wrongfully and unlawfully detains the same in the town of Summerville, County of Texas, to plaintiff's damage in the sum of $ 100; asks judgment for possession of the automobile and $ 100 damages for the taking and detention of the same, and in case delivery of said property cannot be had, asks judgment for $ 775, the value thereof.
The answer is in the nature of a general denial, accompanied with an affirmative declaration that defendant is now and was at all times mentioned in the petition, the legal owner of the motor vehicle mentioned therein, having title thereto duly registered; that same was in due form and that there was not stamped upon it any notice or any statement as to any encumbrance or any indebtedness thereon, "as is required by the law for the year 1939, Section 7774, 3097-A." That he acquired said property in good faith for a valuable consideration without notice of any claim or encumbrance thereon; that he has been damaged by virtue of this action in loss of time required to secure a delivery bond and expenditures of attorney fees in the sum of $ 100. The reply was a general denial.
The evidence shows that Ray Bowne was a Studebaker dealer at Mountain Grove, Missouri, in the year 1940, and particularly in the month of February, and as such was engaged in selling Studebaker automobiles; that early in the month of February he sold to Darol Sterling, a resident of Mountain Grove, Wright County, Missouri, a new Studebaker coupe for the sum of approximately $ 1200; that in payment thereof Sterling delivered to Bowne a Nash coupe; that Sterling was undecided as to whether he would pay the balance of the purchase price in cash or give a mortgage, but relying upon the promise of Sterling to pay cash or give a mortgage Bowne delivered to Sterling a dealer's certificate or application for title in which it was stated there were no encumbrances against the car. No encumbrance or mortgage of any kind had been placed against the car at the time Bowne issued the dealer's certificate. The Studebaker coupe was turned over to Sterling at the time this certificate or application for title was delivered, the exact date of the transaction does not appear other than it was in the first part of February. This dealer's certificate or application for title showing no encumbrance upon the car, was sent to the Secretary of State, and later, February 26, 1940, a certificate of title was issued by the Commissioner of Motor Vehicles to Darol Sterling showing the car to be free of encumbrance. Previous to that date, to-wit: On February 20, 1940, Sterling executed a note secured by chattel mortgage for $ 775.18, allegedly for the balance of the purchase price of the Studebaker coupe, which, at the suggestion of Bowne, were made to Smith & Pyatt Motor Co., of Seymour, Webster County, Missouri, who had a Chevrolet Agency at that place. The chattel mortgage was filed in the office of the Recorder of Deeds of Wright County, Missouri, Sterling's residence, on the 22nd day of February, 1940. Mr. Pyatt, of the firm of Smith & Pyatt, testified that this contract was transferred by him to the Interstate Securities Co., in Springfield, Missouri, for the consideration of $ 640; that Bowne received the money and that his (Pyatt's) position was merely that of an accommodation endorser.
Some months later it appears that Sterling sold or traded the automobile in question to Homer Lane. The exact date of the transaction is not shown. Sterling signed the transfer of title "in blank." The signature and execution of the assignment was acknowledged by a notary public. At the time of the transfer to Lane, Sterling states that he certified that the car was unencumbered, but that he told Lane that there was $ 700 due against the car and that the mortgage was held by the Interstate Securities Co. of Springfield, Missouri, plaintiff herein. Later on Mr. Lane came to Mr. Sterling and asked him to insert in the blank assignment the name of Joe Barton, stating that he (Lane) had made a deal of some kind with Mr. Barton. Whereupon Sterling filled out the blanks in the assignment of title and inserted as Assignee the name of Joe Barton. The name of Lane never, at any time, appeared as Assignee of the title to the Studebaker coupe. The Interstate Securities Co., plaintiff herein, to whom Smith & Pyatt assigned the note and deed of trust allegedly given for the balance of the purchase price of the Studebaker coupe from Mr. Bowne, is still the owner thereof and the last payment made on the note being about the month of July, 1940, at which time there was left an unpaid balance of $ 700.15.
The plaintiff offered in evidence the original note and mortgage. A certified copy of the chattel mortgage, as well as the copy that was filed with the...
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