Kelley Kar Co. v. Finkler

• Decision Date: 13 June 1951
• Docket Number: No. 32281,32281
• Parties: , 44 O.O. 494 KELLEY KAR CO. v. FINKLER.
• Court: Ohio Supreme Court

Page 541

155 Ohio St. 541

99 N.E.2d 665, 44 O.O. 494

KELLEY KAR CO. v. FINKLER.

No. 32281.

Supreme Court of Ohio.

June 13, 1951.

Syllabus by the Court.

1. In an action for replevin of a motor vehicle the plaintiff must rely upon his own title or right to immediate possession and cannot prevail by reliance on the weakness of the title or right of possession of the defendant.

2. By enactment of the Certificate of Title Act, comprising Sections 6290-2 to 6290-20, General Code, the General Assembly of Ohio established the law and declared the policy of this state with respect to evidence of title to motor vehicles.

3. Under the provisions of Section 6290-4, General Code, an Ohio court cannot recognize the right, title, claim or interest of any person in or to any motor vehicle sold or disposed of or mortgaged or encumbered in Ohio after the effective date of that section of the Code unless such right, title, claim or interest is evidenced by a certificate of title or manufacturer's or importer's certificate duly issued in accordance with the provisions of the Certificate of Title Act.

4. Section 6290-9, General Code, removes motor vehicles from the operation of Sections 8560 to 8572, inclusive, General Code, and provides that any conveyance intended to operate as a conditional sales contract covering a motor vehicle shall be valid as against subsequent purchasers if a notation of the same has been made by the clerk of courts on the face of the certificate of title, but otherwise such conveyance shall not be valid against them.

5. One who claims a right, title or interest in or to a motor vehicle by virtue of a conditional sales contract executed in a state other than Ohio, which instrument purports to retain title in the claimant until the entire purchase price is paid, and which claimant does not possess an Ohio certificate of title covering such automobile and whose claim of right, title or interest under such conditional sales contract is not noted upon any Ohio certificate of title covering said automobile, cannot prevail in an action in replevin against one in Ohio who holds an Ohio certificate of title therefor and who purchased such automobile in good faith and for value from one in possession of said automobile and who held an Ohio certificate of title covering said automobile which did not bear on its face any notation of the right, title or interest claimed under such conditional sales contract so executed in a state other than Ohio.

The Kelley Kar Company, appellee herein, a California corporation, brought an action in replevin against Leo Finkler, appellant herein, to procure possession of an automobile, claiming ownership thereof. The trial court awarded possession to the appellee and the Court of Appeals affirmed the judgment. The cause is in this court for review by reason of the allowance of the appellant's motion to certify the record. The salient facts are as follows:

On August 16, 1947, The Kelly Kar Company of Los Angeles, California, sold a used 1946 Cadillac convertible coupe to one John Anderson for $6,561.10. Part of the purchase price was paid in cash. The unpaid balance amounted to $4,901. A conditional sale contract was executed between the parties which reserved title in the seller until the purchase price was paid. The record does not disclose whether the conditional sale contract was filed or recorded in any public office in California.

The conditional sale contract recited in the opening paragraph that it was executed 'by and between Kelley Kar Co., 1225 South Figueroa, Los Angeles 15, California, seller, and John Anderson of Nevada, purchaser.' The witness clause at the end of the agreement recited the address of John Anderson as Cramers Auto Court, Reno, Nevada. The record does not disclose whether John Anderson ever took the car to Reno, Nevada, but on August 26, 1947, ten days after the car was purchased in Los Angeles, Anderson appeared with the car in Vermont which is one of the states not having a motor vehicle certificate of title law. On that date, August 26, 1947, Anderson secured from the Vermont Motor Vehicle Department a certificate which indicated that he was the owner of the automobile and on which certificate no liens were shown. It appears that Anderson conveyed the automobile to one Jack Collins who procured a Vermont registration in his own name and then transferred the car back to Anderson. On October 9, 1947, Anderson appeared in Cleveland with the car and procured an Ohio certificate of title from the clerk of Courts of Cuyahoga County as replacement of the Vermont certificate which he had procured from Jack Collins. Anderson did not inform the Clerk of Courts of Cuyahoga County of any interest of The Kelley Kar Company.

On October 14, 1947, Finkler, relying upon the Ohio certificate of title held by John Anderson, purchased the car from him and an Ohio certificate of title was issued to Finkler upon surrender of the one previously held by Anderson.

The Kelley Kar Company learned, by some means not disclosed, that the automobile was in possession of Finkler and on January 16, 1948, filed this petition in the Common Pleas Court of Erie County, Ohio, seeking to replevin the automobile from Finkler and claiming $3,000 as damages. Finkler answered denying that he wrongfully detained the automobile and claimed that he was the true and lawful owner thereof, that he purchased the automobile from one John Anderson through Elk-Hart Motors, a Cleveland automobile dealer, and that he (Finkler) was the holder of an Ohio certificate of title which was duly filed with the clerk of courts.

It is not claimed that Finkler acted other than in good faith in purchasing the automobile from anderson or that he (Finkler) was a party to any misrepresentation made by Anderson in procuring an Ohio certificate of title. There is no evidence that The Kelley Kar Company knew of the conduct of, or the action taken by, Anderson from the time he procured possession of the automobile on August 16, 1947, until after he sold it to Finkler on October 14, 1947.

Flynn, Py & Kruse and Raymond N. Watts, all of Sandusky, for appellee.

Terrell, Williams & Salim, Cleveland, for appellant.

MIDDLETON, Judge.

Can The Kelley Kar Company, relying solely upon the reservation of title contained in the conditional sale contract executed in California recover, in an Ohio court, possession of the automobile from Finkler who purchased it in good faith relying upon an Ohio certificate of title, regular on its face, and which named as the owner of the car the one from whom Finkler purchased it, there being no notation on the Ohio certificate of title so held by the seller of any liens, rights or interests held or claimed by The Kelley Kar Company?

The advent of motor vehicles early in the century created new problems and necessitated the enactment of laws not theretofore required. Aside from statutes regulating speed and other features of operation, the first act of the General Assembly relating specifically to motor vehicles was passed April 2, 1906, 98 Ohio Laws, 320. That act required registration of motor vehicles with the Secretary of State but the obvious purpose of the act was to collect a registration fee and not to control the method of transferring title. Many amendatory acts were passed during the succeeding years which dealt with the same subject of registration and collection of registration fees but did not deal with the method of transfer.

On April 29, 1921, the General Assembly passed an act entitled: 'To prevent traffic in stolen cars, require registration and bill of sale to be given in event of sale or change in ownership of motor vehicles.' 109 Ohio Laws, 330. Further amendatory acts were passed in 1923, 1925 and 1931, but until the act of April 28, 1937, title to a motor vehicle was evidenced only by a bill of sale. There was no provision for certificates of title.

Because of their mobility and frequent change of ownership it was obviously necessary to create an instrument evidencing title which would more adequately protect innocent purchases of motor vehicles. On April 28, 1937, 117 Ohio Laws, 373, the General Assembly passed an act entitled: 'To prevent the importation of stolen motor vehicles and thefts and frauds in the transfer of title to motor vehicles by amending section 5546-29 of the General Code, by supplementing section 6290 by the enactment of * * * [Sections 6290-2 to 6290-17, inclusive, General Code].' This act repealed corresponding sections of the then existing act. It became effective January 1, 1938, and with minor changes remains in the General Code as of the present date.

The act of 1937 repealed the bill of sale provisions of the Code and created the 'Certificate of title.'

The following are among the pertinent provisions of the Certificate of Title Act:

Sections 6290-3, General Code, provides:

'No person * * * shall sell or otherwise dispose of a motor vehicle without delivering to the purchaser or transferee thereof a certificate of title with such assignment thereon as may be necessary to show title in the purchaser, nor purchase or otherwise acquire a motor vehicle unless he shall obtain a certificate of title for the same in his name in accordance with the provisions of this chapter.'

By Sections 6290-5 and 6290-6, General Code, the clerk of courts is empowered to issue certificates of title and provision is made for compiling records thereof in the office of the clerk of courts and in the office of the Registrar of Motor Vehicles in Columbus.

By Section 6290-9, the sections of the General Code relating to the execution, filing and validity of chattel mortgages and conditional sales contracts, to wit, Sections 8560 to 8572, inclusive, are made inapplicable to motor vehicles and any liens or interests in motor vehicles are required thereafter to be noted upon the certificate of title.

Section 6290-13 prescribes the exact form of...