Marshall v. Bardin

• Court: Kansas Supreme Court
• Writing for the Court: WEDELL
• Citation: Marshall v. Bardin, 169 Kan. 534, 220 P.2d 187 (Kan. 1950)
• Decision Date: 08 July 1950
• Docket Number: No. 37780,37780
• Parties: MARSHALL v. BARDIN et al.

Page 187

220 P.2d 187

169 Kan. 534

MARSHALL v. BARDIN et al.

No. 37780.

Supreme Court of Kansas.

July 8, 1950.

Rehearing Denied Aug. 3, 1950.

Syllabus by the Court

1. When this court reviews a record on appeal it does not try the factual issues de novo. It is concerned only with evidence, and reasonable inferences to be drawn therefrom, which support findings of the trial court and not with evidence which would support contrary findings.

2. In determining the sufficiency of evidence this court does not substitute its judgment for that of the district court as a trier of the facts with respect to the credence that court has seen fit to accord the testimony of witnesses.

3. A purchaser of aircraft cannot lawfully operate or navigate any aircraft until a conveyance is delivered to him and registered in his name. 49 U.S.C.A. § 521(a).

4. There is an implied contract upon the part of the registered title owner of aircraft to deliver to a purchaser good record title as required by the Civil Aeronautics Act.

5. An attachment creditor is not a purchaser for value buying upon the strength of a record title. His attachment does not per se affect the title at all.

6. An attachment creditor acquires no greater right in the property seized than the defendant in the attachment owned. The attachment binds the interest of the defendant only, whether that interest is shown by the record or not.

7. The intent and purpose of the recording provisions of the Civil Aeronautics Act, 49 U.S.C.A. § 523(c), is to protect persons who have dealt on the faith of the recorded title of aircraft and as to whom it would be a fraud to give effect to unrecorded titles to their detriment.

8. An attachment creditor of the record title owner of an aircraft who in acquiring his claim for a money judgment against the attachment debtor in nowise dealt with such debtor on the faith of the recorded title of the particular aircraft attached, and who has actual notice prior to the attachment of the possession and claim of title by an intervenor who, under agreement with the attachment debtor, had discharged a claim for repairs against the attached aircraft, cannot deprive the intervenor of his equitable title on the ground such equitable title was not yet recorded.

Burr S. Stottle, of Kansas City, Mo., Donald C. Little, of Kansas City, on the briefs, for appellant.

Claude L. Rice, of Kansas City, Mary Jane Keller, of Kansas City, on the briefs, for appellee.

WEDELL, Justice.

The original opinion is reported in 169 Kan. 41, 216 P.2d 812. The parties, the nature of the action, the pleadings, findings of fact made and the judgment of the trial court are all set forth in the original opinion and are made a part hereof without restatement.

A few preliminary statements, however, may be helpful. The appellant Marshall filed his original action December 4, 1947, and had the instant airplane attached as the property of L. F. Bardin and Joseph Slager, partners doing business as Central Airpart Company. On January 4, 1949, appellant made Central Airparts, Inc., an Ohio corporation, an additional party defendant and had a second attachment issued on that date. Appellant admits the latter defendant, the corporation, and not the partnership was and is the registered title owner of the airplane. It follows appellant reached nothing as a result of the first attachment. Approximately eight months before the second attachment issued against the corporation the intervenor, Anderson, filed a verified amended interplea. (For interplea see original opinion.) Neither the defendant partnership nor the corporation made an appearance in the case. The action was tried solely on issues joined by the appellant, an attaching creditor, who sought to satisfy his claim against the defendant corporation for repairs made on other airplanes and appellee, the intervenor, who claimed to have acquired title to the instant airplane under an oral agreement with the defendant corporation that intervenor could have the plane if he would pay a claim for labor performed and materials furnished in the repair of the instant airplane by a Mississippi concern, the owner corporation believing the repair bill was highly exorbitant.

On the testimony adduced on the trial the court found the allegations contained in intervenor's interplea were true. The trial court also expressly found the intervenor was the owner and in possession of the airplane on the dates of both attachments.

On his motion for rehearing appellant reiterates his contention there was no evidence he had actual notice of intervenor's claim of title prior to the attachments. Touching the factual issues we previously said: 'The parties argue about where the burden of proof rested. That is not very material in this case now. Much depended on what witnesses the trial judge believed and on what weight he attached to their testimony. If he believed appellee's witnesses, and an examination of the record indicates he must have, this court cannot say the proof was insufficient to sustain the findings made.' 169 Kan. page 44, 216 P.2d page 815.

We also might have said the district court, in order to reach its decision could have placed little, if any, credence on material portions of evidence adduced by and on behalf of appellant. What credence the trial court should have given the testimony was a matter which rested in its province, a field we do not invade. We, therefore, adhere to our former opinion with respect to the facts.

Appellant leans heavily on Penrose v. Cooper, 88 Kan. 210, 128 P. 362, and other similar cases in which there was no substantial conflict in material portions of the evidence and in which only a question of law on the undisputed evidence was involved. Such cases are not in point. Here the material evidence was highly conflicting. In rendering our former decision we believed the court's findings settled the issues in this case and so stated. Appellant thought otherwise.

Our real purpose in granting a rehearing was to permit the parties to give us additional assistance, if possible, relative to the question whether actual notice to appellant, an attaching creditor, of intervenor's claim of title prior to the attachments enabled appellant to obtain possession of the attached airplane free and clear of intervenor's interest, under the provisions of the Civil Aeronautics Act. 49 U.S.C.A. § 523(c) (Pocket part) provides: 'No conveyance the recording of which is provided for by subsection (a)(1) of this section made on or after August 22, 1938, and no instrument the recording of which is provided for by subsection (a)(2) of this section or subsection (a)(3) of this section made on or after June 19, 1948, shall be valid in respect of such aircraft, aircraft engine or engines, propellers, appliances, or spare parts against any person other than the person by whom the conveyance or other instrument is made or given, his heir or devisee, or any person having actual notice thereof, until such conveyance or other instrument is filed for recordation in the office of the Administrator. For the purposes of this subsection, such conveyance or other instrument shall take effect from the time and date of its filing for recordation, and not from the time and date of its execution.' (Our italics.)

Appellant relies on the following cases decided since the Civil Aeronautics Act became effective: Wilson v. Barnes, 359 Mo. 352, 221 S.W.2d 731; In re Veterans' Air Express Co., D.C., 76 F.Supp. 684; United States v. United Aircraft Corporation, D.C., 80 F.Supp. 52; Blalock v. Brown, 78 Ga.App. 537, 51 S.E.2d 610, 9 A.L.R.2d 476, and on prior decisions rendered under R.S. 1873 § 4192, now 46 U.S.C.A. § 921, of the Federal Ship Mortgage Act. Cases under that act relied on by appellant are: Hitchings v. Olsen, 3 Cir., 184 F. 305; Secrist v. German Ins. Co., 19 Ohio St. 476; Dize v. Beacham, 81 Md. 603, 32 A. 243.

Appellee contends none of the cases cited by appellant is controlling under the particular facts of this case. He admits he has found none squarely in point under the Civil Aeronautics Act but contends the question has been determined under the Federal Ship Mortgage Act. The parties concede it has been held the provision of the statute here involved is almost identical under the two acts. Blalock v. Brown, supra, 51 S.E.2d page 615. Appellee relies on Fort Pitt Nat. Bank v. Williams, 43 La.Ann.La. 418, 9 So. 117; Hobbs et al. v. The Interchange, 1 W.Va. 57; Moore v. Simonds, 100 U.S. 145, 25 L.Ed. 590.

Appellee also relies on the established doctrine an attaching creditor acquires no greater right in the property seized than the defendant debtor in the attachment owned. Julian v. Eagle Oil & Gas Co., 83 Kan. 440, 111 P. 445; Federal Trust Co. v. Ireland, 132 Kan. 615, 296 P. 704; Howard v. Howard, 149 Kan. 223, 86 P.2d 510.

Appellant rests his case primarily on the factual basis he had no actual notice of intervendor's claim of title prior to the attachments and the purported sale to intervenor was void. If the factual basis on which appellant rests his case were in his favor the cases he cites would be in point. Unfortunately for him, as previously stated, there was evidence he had actual notice of intervenor's claim of title prior to both attachments. As previously indicated, however, the last attachment is the only one of any consequence now.

Appellant argues the trial court did not find he had actual notice of intervenor's claim prior to the attachments. We think the findings of the court that the allegations of the interplea were true and that intervenor was the owner in possession of the airplane at the time of the attachments covered that issue.

A careful examination of the cases cited by the parties and our own research has disclosed no case squarely in point. A review of the cases cited, in our opinion, does disclose it was the intent and purpose of the Congress in enacting the Civil Aeronautics...