National Bond & Investment Co. v. Mound City F. Co.

• Decision Date: 05 May 1942
• Docket Number: No. 26050.,26050.
• Court: Missouri Court of Appeals
• Parties: NATIONAL BOND & INVESTMENT CO. v. MOUND CITY FINANCE CO.

161 S.W.2d 664

NATIONAL BOND & INVESTMENT CO. v. MOUND CITY FINANCE CO.

No. 26050.

St. Louis Court of Appeals. Missouri.

May 5, 1942.

Appeal from St. Louis Circuit Court; F. E. Williams, Judge.

"Not to be reported in State Reports."

Replevin suit by the National Bond & Investment Company against the Mound City Finance Company to secure possession of an automobile. Judgment for the plaintiff, and the defendant appeals.

Judgment reversed, and the cause remanded.

Henry C. Hinkel and Hinkel & Carey, all of St. Louis, for appellant.

Thomas F. Manion and Melville A. Ochsner, both of St. Louis, for respondent.

ANDERSON, Judge.

This is a replevin suit brought by respondent to secure the possession of a certain 1939 Plymouth Tudor Touring Sedan, motor No. PB-146772, serial No. 20039848. The suit was filed in a justice of the peace court in the City of St. Louis. The constable failed to secure possession of the property, and the cause proceeded as a replevin suit without bond. The justice of the peace found in respondent's favor, and defendant appealed to the circuit court, where, after a trial, a verdict and judgment were entered in favor of respondent.

Evidence was adduced on the part of plaintiff to the effect that on April 26, 1940, it loaned to G. V. Fletcher, Inc., a corporation, the sum of $320, and as security for said loan the borrower executed a note secured by a chattel mortgage upon an automobile, the subject matter of this suit. Mr. Fletcher represented the borrower in the transaction, and at the time delivered to plaintiff company a certificate of title to the automobile, issued by the Secretary of State, and dated February 14, 1939. On its face, the certificate of title shows the owner of said car to be D. N. Meagher of 3641 Palm Street, St. Louis, Missouri. On the reverse side of the certificate of title, in the printed form of assignment prescribed by the Commissioner of Motor Vehicles, the signature of D. N. Meagher appears above the words "Signature of Assignor." The portion of the form providing for the name of the "assignee" is in blank, and nowhere upon the reverse side of the certificate of title is there the name of any assignee. The printed and written matter appearing under the heading "Assignment of title" is as follows:

                                    we
                "For value received----hereby sell, assign
                                     I
                or transfer unto ___________________________
                                       Name of purchaser
                Address ______________________________________
                        Street   City or town   County   State
                the motor vehicle described on the reverse
                                             we
                side of this certificate and----hereby warrant
                                             I
                

the title to said motor vehicle, and certify that at the time of delivery the same is subject to the following liens or encumbrances, and none other.

                ------------------------------------------------
                Amount     Kind     Date              Favor of
                "D. N. Meagher
                ------------------
                "Signature of Assignor
                "State of Missouri   |
                                       > SS
                "City of St. Louis   |
                

"On this 24th day of April, 1940, before me personally appeared D. N. Meagher, to me known to be the party described in and who executed the foregoing instrument and acknowledged that they executed the same as their free act and deed.

"In testimony whereof, I have hereunto set my hand and affixed my notarial seal on the day and year last above written.

"My commission expires on the 21st day of March, 1943.

                            "Marie Deters           (Seal)
                           -----------------
                             "Notary Public"
                

The note and chattel mortgage were introduced in evidence. The former, dated April 26, 1940, was in the amount of $320, and payable to respondent on the 12th day of June, 1940, together with interest at the rate of 6 per cent per annum after date. It recited that it was secured by a chattel mortgage executed that day, and was signed, "G. V. Fletcher, Inc., By G. V. Fletcher, Pres."

The chattel mortgage also was dated April 26, 1940, and signed "G. V. Fletcher, Inc., By: G. V. Fletcher, Pres.", and by its terms it sold and conveyed to respondent the car described in said certificate of title, the conveyance to become void upon payment of said note. Other provisions were set out in the mortgage, those material to the issues herein being as follows:

"And Provided, Also, that it shall be lawful for said Mortgagor to retain possession of said property * * * until he shall make default in payment of said note, or until said Mortgagor shall violate some other provision hereof. * * *

"Said Mortgagor covenants and agrees with said Mortgagee as follows, to-wit:

"(1) That said Mortgagor will warrant and defend said property to said Mortgagee, against all claims and demands whatsoever.

"(2) That said Mortgagor shall keep said property in his sales room at 2729 N. Grand Bl. Street, St. Louis, Mo. and exhibit the same for sale in the regular course of trade. That no sale of said property, or any part thereof, shall be made except at retail and in due course of the Mortgagor's business; that at the time of the making of any sale from said property, or prior thereto, the Mortgagor shall pay off and discharge that portion of the debt secured by the property sold or then about to be sold.

"(3) That if default be made in the payment of said note, or if the Mortgagee shall at any time deem itself or said property insecure, or shall fear removal or if there be a breach of any covenant hereof then said note shall * * * become at once due and payable; and the Mortgagee shall thereupon have the right to * * * take possession * * * and sell said property * * *.

* * *

"(4) That the mortgagor * * * agrees * * * not to part with the possession of the property or remove it from said sales room without the written consent of the Mortgagee."

The foregoing mortgage was filed in the office of the Recorder of Deeds for the City of St. Louis on April 27, 1940.

Thereafter Mr. Bruce, manager for respondent, discovered that the automobile was in the possession of the appellant Mound City Finance Company, and when he contacted the latter he was told by someone connected with that firm that the Mound City Finance Company had purchased the automobile from G. V. Fletcher, Inc. Bruce then demanded the car from the Mound City Company, which demand was refused, Bruce being informed at the time that his company would have to replevin the automobile.

It was admitted by defendant's counsel that the reasonable value of the car in April, 1940, was $320.

Joe Simpkins, connected with defendant company, testified that defendant purchased the automobile from G. V. Fletcher, Inc., on or about April 29, 1940, paying therefor the sum of $400, and that his company sold the car in July or August, 1940, to someone whose name the witness could not recall. He stated that defendant received no certificate of title to the car when it purchased same and gave none to its vendee. He also testified that on the 3rd day of May, when this suit was filed in the Justice Court, the automobile in question was stored in a building in Pine Lawn, in St. Louis County.

At the close of the case, defendant requested an instruction in the nature of a demurrer to the evidence, which the court refused, defendant excepting at the time. Thereupon the court gave a peremptory instruction, directing the jury that their verdict should be for plaintiff for the possession of said automobile, and that they should find the value of said automobile to be $320 at the time of the commencement of said action. Defendant duly saved exceptions to this instruction. The jury thereafter returned a verdict as directed, upon which verdict the circuit court entered judgment. This appeal followed.

In this court appellant first assigns as error the action of the trial court in refusing its requested instruction in the nature of a demurrer to the evidence, and in directing a verdict for plaintiff, contending that the plaintiff's mortgage was not valid because G. V. Fletcher, Inc., at the time it executed same, did not have title to the car, for the reason that the title was not properly assigned to it.

It is a familiar principle of law that replevin is a possessory action, and that plaintiff must have a right to immediate possession before he is entitled to recover. It is also universally held that a plaintiff in such an action may not recover on the weakness of defendant's title, but must rely on the strength of his own title or right to the property. Ball v. Davis, Mo.App., 107 S.W.2d 87; Weaver v. Lake et al., Mo.App., 4 S.W.2d 834; Hannibal Inv. Co. v. Schmidt, Mo.App., 113 S.W.2d 1048. Plaintiff's cause of action in the case at bar was based upon a duly recorded chattel mortgage, executed prior to the time of the alleged purchase by defendant. The terms of said mortgage were breached prior to the time plaintiff brought the suit. Therefore, unless this mortgage was invalid for the reason that G. V. Fletcher, Inc., did not have title to the automobile in question when the mortgage was executed, as contended by appellant, plaintiff was entitled to the immediate possession of the car when it brought suit. Whether G. V. Fletcher, Inc., did have title to the car at the time depends upon whether there was a valid assignment of the...