Loyal's Auto Exchange v. Munch

• Decision Date: 26 January 1951
• Docket Number: No. 32791,32791
• Parties: LOYAL'S AUTO EXCHANGE, Inc. v. MUNCH et al.
• Court: Nebraska Supreme Court

Page 913

45 N.W.2d 913

153 Neb. 628

LOYAL'S AUTO EXCHANGE, Inc. v. MUNCH et al.

No. 32791.

Supreme Court of Nebraska.

Jan. 26, 1951.

Syllabus by the Court

1. The legislative act 'Relating to Title and Transfer of Motor Vehicles,' now Chapter 60, art. 1, R.S. 1943, together with the amendments made thereto, constitutes an authorized exercise of police power on the part of the Legislature and does not violate any of the provisions of our state or federal constitution.

2. Insofar as Blixt v. Home Mutual Ins. Co., 145 Neb. 717, 18 N.W.2d 78, holds to the contrary the same is overruled.

3. A purchaser who receives possession of an automobile without obtaining the certificate of title thereto, as required by our statute, acquires no title or ownership therein.

4. A subsequent purchaser for value of the automobile, who obtains the certificate of title by complying with the statutory requirements relating thereto, obtains the title and ownership thereof. His title and ownership are superior to any rights which the first purchaser may have.

5. The plaintiff in a replevin action must recover, if at all, upon the strength of his own title to the property involved and not upon the weakness of the defendant's title to said property.

6. The giving of erroneous instructions is not cause for reversal, if the instructions are more favorable to the complaining party than he is entitled to under the law.

7. A notary public is disqualified to act as such officer when he has a direct pecuniary interest in the matter and under such a situation cannot lawfully take the acknowledgment.

8. A stockholder in a corporation, who is likewise a notary, has such a direct beneficial interest in the corporation as to disqualify him from taking an acknowledgment to an instrument running to it.

9. A party to an action is entitled to have the jury instructed with reference to his theory of the case, when the pleadings present the theory as an issue and it is supported by competent evidence.

10. Generally the declarations and admissions of executive officers and managers as agents of a corporation, made while acting within the scope of such authority and in connection with the performance of some duty to which such declarations are pertinent, are admissible against such corporation.

Monsky, Grodinsky, Good & Cohen, Omaha, for appellant.

Abrahams, Kaslow & Carnazzo, Herbert M. Fitle, all of Omaha, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

WENKE, Justice.

Loyal's Auto Exchange, Inc., a corporation, brought this action in the district court for Douglas County to replevin a 1947 Ford Tudor automobile. The action was brought against certain police officers and the City of Omaha. Lester L. Kornfeld intervened and claimed to be the owner thereof. There was a verdict and judgment in favor of the plaintiff. His motion for new trial or in the alternative for a judgment notwithstanding the verdict having been overruled, intervener appealed.

At the time this suit was instituted the automobile was in the possession of the police officers of the city of Omaha who had taken it from intervener. The police officers and the city of Omaha disclaimed any interest in the automobile and the case proceeded to trial on the issues raised by plaintiff and intervener. For the purpose of this opinion the parties will be referred to as they appeared in the trial court.

The first question raised by the appeal is the sufficiency of the evidence to sustain the verdict. To sustain its contention that it was the owner of the automobile and entitled to the immediate possession thereof plaintiff adduced evidence to the following effect: That on or about May 1, 1947, James B. Skipper, who will hereinafter be referred to as Skipper, purchased the automobile, the ownership of which is herein in question, from the Champion Motor Sales Company of Omaha; that he paid therefor the sum of $2,325 of which $1,325 was in cash and the balance by a loan financed by the Mutual Credit Company of Omaha; that on May 6, 1947, a certificate of title to the automobile was issued by the county clerk of Douglas County to Skipper which certificate had noted thereon that title had been acquired from the Champion Motor Sales Company on May 1, 1947, and that the Mutual Credit Company had a first lien thereon in the sum of $1,322.40; that the certificate of title to the automobile was turned over to the Mutual Credit Company and that it never came into the possession of Skipper; that on July 12, 1947, Skipper sold the automobile to the plaintiff for the sum of $1,800; that plaintiff is a corporation engaged in the buying and selling of automobiles with its principal place of business located in Omaha, Nebraska; that Loyal Katskee was the president, a director, and the officer in active charge thereof at the time; that of the purchase price plaintiff paid to the Mutual Credit Company the sum of $1,261.71, being the total balance of its lien, and to Skipper the balance in cash; that Skipper did not at that time deliver a certificate of title to the automobile to the plaintiff because it was at all times held and in the possession of the Mutual Credit Company who had the lien thereon; that Skipper gave plaintiff a power of attorney authorizing Sam Moskovitz, and employee of plaintiff, to assign the certificate of title to the automobile to the plaintiff; that possession of the automobile was not delivered to the plaintiff by Skipper, his reason for not doing so was that it was then being used by one of his employees out in the state and that as soon as he returned it to Omaha he would deliver it; that the Mutual Credit Company, upon being paid in full, released its lien and turned over to plaintiff the certificate of title, which it then held; that on the same date Sam Moskovitz, pursuant to the authority given him by Skipper's power of attorney, assigned the certificate of title to plaintiff; that on the same date plaintiff filled in the application for certificate of title to the automobile which it later filed with the county clerk of Douglas County on July 25, 1947; that on July 25, 1947, a certificate of title was issued to the plaintiff; that Skipper had not then delivered the automobile to plaintiff; that on July 26, 1947, at the request of the plaintiff, the police of Omaha picked up the automobile which was in the possession of intervener; that both plaintiff and intervener made claim thereto; that the police refused to turn the automobile over to either party; and that this action was commenced on July 29, 1947.

Intervener adduced evidence to the effect that on April 29, 1947, he paid Skipper $1,455 in cash for the automobile; that shortly thereafter, about two hours, the automobile was delivered to him; that Skipper did not give him a certificate of title thereto although he knew one was necessary; that he made request therefor; that Skipper told him he would get it from the seller and mail it to him; that Skipper never mailed or gave him a certificate of title to the automobile although he often requested and demanded he do so; that he did, sometime during the first part of July 1947, obtain a receipt from Skipper showing that he had paid for the automobile in full; and that he was at all times in possession of the automobile from the time it was delivered to him up until July 26, 1947, when the police took it from him and from whose possession it was replevied by the plaintiff.

In 1939 the Legislature passed an act 'Relating to Title and Transfer of Motor Vehicles,' Laws 1939, c. 81, p. 328. The purpose of the act, as disclosed by the title, includes the following: '* * * prohibiting sale or transfer of motor vehicles unless accompanied by assignment of certificate of title; * * *.' This act is found in Chapter 60, art. 1, R.S.1943. Certain sections of this act were amended by the 1945 Legislature. See Laws 1945, c. 140, p. 442.

As amended, section 60-104, R.S.Supp., 1949, so far as here material, 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 or bring into this state a motor vehicle * * * except for temporary use.'

As amended, section 60-105, R.S.Supp., 1949, so far as here material, provides: 'No person * * * acquiring a motor vehicle * * * from the owner thereof * * * shall acquire any right, title, claim, or interest in or to such motor vehicle * * * until he shall have had issued to him a certificate of title to such motor vehicle * * * or delivered to him a manufacturer's or importer's certificate for the same; nor shall any waiver or estoppel operate in favor of such person against a person having possession of such certificate of title or manufacturer's or importer's certificate for such motor vehicle * * * for a valuable consideration. No court in any case at law or in equity shall recognize the right, title, claim or interest of any person in or to any motor vehicle * * * sold or disposed of, or mortgaged or encumbered, unless evidenced by a certificate of title * * * duly issued, in accordance with the provisions of this act.'

The Supreme Court of Ohio, under an act like ours, after fully considering the questions of constitutionality here raised came to the following conclusion: 'After a close study of the new law, in connection with a number of authorities, the members of this court are unanimously of the opinion that it represents an authorized exercise of the police power by the General Assembly in relation to a matter of public concern, and is not violative of any part of the organic law of either the state of Ohio or the United States, especially with reference to the delegation of judicial powers and due process of law.' State ex rel. City Loan &...