Pearson v. Allied Finance Co.
| Decision Date | 19 March 1963 |
| Docket Number | No. 31225,31225 |
| Citation | 366 S.W.2d 6 |
| Parties | James PEARSON, (Plaintiff) Respondent, v. ALLIED FINANCE COMPANY, (Defendant) Appellant. |
| Court | Missouri Court of Appeals |
Murray Steinberg, Richard Marx, St. Louis, for appellant.
Patrick A. Marcella, St. Louis, for respondent.
This is an action in replevin. The defendant Allied Finance Company took possession of an automobile under a chattel mortgage, and the plaintiff, from whom it was taken, replevined it from the Finance Company. Upon trial to the court there was a finding and judgment for the plaintiff. The judgment gave the plaintiff possession of the car and $50.00 damages. In due time thereafter, the defendant filed its motion for a new trial, which was overruled, and within time thereafter the defendant appealed.
The facts of the matter are that the plaintiff agreed to buy a used 1960 Chevrolet from the Page-Way Motors, Inc. On April 18, 1960, he gave the Page-Way Motors, Inc. an automobile in trade, for which he was allowed $150.00, and he paid the balance of the purchase price in cash. He was told by the salesman for the Motor Company that the company did not have the title then, but that it would be mailed to him. The plaintiff was given a bill of sale, but never received title to the car, although he made repeated requests for it. On October 30, the automobile was taken from in front of plaintiff's home by agents of the Allied Finance Company. The plaintiff, upon learning who had taken the car, brought the replevin action here under consideration against the Allied Finance Company.
The Finance Company claims the title and right of possession of the car by reason of a chattel mortgage. The facts as they relate to this mortgage are that on April 12, 1960, the Allied Finance Company loaned $14,635 to Page-Way Motors, Inc. to enable it to purchase five automobiles. At the time that the Allied Finance Company made the loan to Page-Way Motors, Inc., it was given an Illinois title to the Chevrolet in question, assigned by Beach & Herring Motors Sales of Murphysboro, Illinois, to Page-Way Motors, Inc. On April 18, 1960, Page-Way Motors, Inc. signed a note for the sum loaned, secured by a chattel mortgage on five cars, including the Chevrolet in question.
The President of the Finance Company testified that it was agreed that the Finance Company would hold Page-Way Motors, Inc.'s titles to the cars, and that when a sale was made the Page-Way Motors, Inc. would pay off the amount of the mortgage that covered the particular car sold before the Finance Company would give Page-Way Motors, Inc. its title to such car. The companies were located close together; Page-Way Motors, Inc. was at 7001 Page Boulevard in St. Louis, and the Finance Company at 7007 Page Boulevard. The mortgage in question was never recorded.
It is a rule of law that in replevin the plaintiff's right to recover must rest upon the strength of his own claim to the property, and not upon the weakness of the defendant's right to it. Pearl v. Interstate Securities Co., 357 Mo. 160, 206 S.W.2d 975; Foulke v. McIntosh, Mo.App., 214 S.W.2d 735; Bordman Investment Co. v. Peoples Bank of Kansas City, Mo.App., 320 S.W.2d 72. To apply this rule to the facts before us, we must examine the strength of plaintiff's claim to the car. Section 301.210, subd. 4, RSMo 1949, V.A.M.S., provides that it is unlawful 'to buy or sell in this state any motor vehicle or trailer registered under the laws of this state, unless at the time of the delivery thereof, there shall pass between the parties such certificate of ownership with an assignment thereof, as herein provided, and the sale of any motor vehicle or trailer registered under the laws of this state, without the assignment of such certificate of ownership, shall be fraudulent and void.'
This provision is applicable to automobiles titled or purchased in other states and brought to Missouri to be sold, as was the Chevrolet here in question. Bordman Investment Co. v. Peoples Bank of Kansas City, 320 S.W.2d 72, l. c. 77, supra; Lebcowitz v. Simms, Mo.App., 300 S.W.2d 827; Craig v. Rueseler Motor Co., Mo.App., 159 S.W.2d 374; Mackie and Williams Food Stores v. Anchor Casualty Co., 8 Cir., 216 F.2d 317.
It is therefore apparent that although Page-Way Motors, Inc. had a valid Illinois title assigned to it, no valid sale could be made by Page-Way Motors, Inc. without assigning a title to the purchaser. G. F. C. Corporation v. Nesser, Mo.Sup., 273 S.W.2d 264. This was not done, and under the statute quoted the sale was void and the plaintiff had no title to the car. Kelso v. Kelso, Mo.Sup., 306 S.W.2d 534, 71 A.L.R.2d 258; Bordman Investment Co. v. Peoples Bank of Kansas City, supra; Albright v. Uhlig, Mo.App., 315 S.W.2d 471.
As stated, the trial court held for the plaintiff. The plaintiff below, and the respondent here, relies upon the case of Hadley v. Smith, 268 S.W.2d 444, by the Springfield Court of Appeals. That case was not a possessory action, but a suit in tort for damages to an automobile. The tort feasor questioned the plaintiff's title to the car, and the court held that the plaintiff was in legal possession, and that the defendant who had wrongfully damaged the car could not question the plaintiff's right to recover for the wrong done.
While the Hadley case was not a possessory action, it is true that one with a special property interest in a car can maintain an action in replevin against one without any right, such as a mere trespasser. Pearl v. Interstate Securities Co., 357 Mo. 160, 206 S.W.2d 975, supra; Rankin v. Wyatt, 335 Mo. 628, 73 S.W.2d 764, 94 A.L.R. 941. It is appellant's contention that such a situation is not before us because it claims possession under its mortgage on the car, and the mortgage was signed by Page-Way Motors, Inc.
This mortgage was executed on April 18, 1960, which is the same day that the purported sale was made to Pearson, the plaintiff. The record does not show which came first on that day, the sale or the execution of the mortgage. Page-Way Motors, Inc. had purchased the car out of the state. The only evidence of title it had, or could have had, at the time of the execution of the mortgage was an Illinois title to the Chevrolet duly assigned to it. Page-Way Motors, Inc. therefore had a good title to the automobile, and it was lawful for it to mortgage it to the defendant. There is no statutory requirement as to the transfer of title certificates in connection with mortgages on automobiles, but the mortgagor must have a legal title for the mortgage to constitute a lien on the car mortgaged. Pearl v. Interstate Securities Co., supra.
The mortgage was a binding instrument between the mortgagor who had title and the mortgagee whose loan was to the title holder. The material facts of this case up to this point are closely similar to those in the case of Bordman Investment Co. v. Peoples Bank of Kansas City, 320 S.W.2d 72, supra. In that case an assigned Kansas certificate of title was made to an automobile dealer who made a loan and executed a mortgage in order to purchase the car, and the mortgagee held the title so assigned. The mortgage so given was held good against a subsequent mortgage executed by one who had no certificate of title.
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...Mo.App., 320 S.W.2d 72, 79(9). The judgment for plaintiffs is reversed. RUARK, P. J., and HOGAN, J., concur. 1 Pearson v. Allied Finance Co., Mo.App., 366 S.W.2d 6, 8(2); Bordman Investment Co. v. Peoples Bank of Kansas City, Mo.App., 320 S.W.2d 72, 77-78(6); Lebcowitz v. Simms, Mo.App., 30......
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