Peper v. American Exchange Nat. Bank in St. Louis

• Decision Date: 08 March 1948
• Docket Number: 40675
• Citation: 210 S.W.2d 41,357 Mo. 652
• Parties: Agnes B. Peper v. American Exchange National Bank in St. Louis, Appellant
• Court: Missouri Supreme Court

210 S.W.2d 41

357 Mo. 652

Agnes B. Peper v. American Exchange National Bank in St. Louis, Appellant

No. 40675

Supreme Court of Missouri

March 8, 1948

Rehearing Denied April 12, 1948.

Appeal from Circuit Court of City of St. Louis; Hon. Robert J Kirkwood, Judge.

Reversed and remanded.

Jesse E. Bishop for appellant.

(1) No assignment of the "certificate of title" was executed to her as asignee, and the attempted sale of the automobile to her was thereby void. Sec. 8382, R.S. 1939; Riss v. Wallace, 350 Mo. 1208, 171 S.W.2d 641, 151 A.L.R. 512; State ex rel. Ins. Co. v. Cox, 306 Mo. 537, 268 S.W. 87, 37 A.L.R. 1456; Personal Finance Co. v. Lewis, 138 S.W.2d 655; Anderson v. Arnold-Strong Motor Co., 229 Mo.App. 1170, 88 S.W.2d 419. (2) Duncan was vested with title to the automobile by virtue of the assignment of the "certificate of title" by Robert Wherry. Natl. Bond & Inv. Co. v. Mound City Finance Co., 161 S.W.2d 664. (3) Duncan's failure to carry out Mrs. Peper's instructions to insert her name as assignee, in the assignment theretofore executed in blank by Wherry, did not prevent Duncan from thereafter conveying a valid chattel mortgage lien on the automobile, to the bank. (4) The insertion of Mrs. Peper's name as assignee, in the assignment executed by Wherry, would have been illegal and unlawful. Sec. 8382(c), R.S. 1939. (5) Being without knowledge or notice of Mrs. Peper's transaction of March 14, 1944, the bank had a right to rely on the "certificate of Title" in Duncan's possession, in accepting his chattel mortgage of September 5, 1944. Anderson v. Arnold-Strong Motor Co., 229 Mo.App. 1170, 88 S.W.2d 419. (6) The bank made a prima facie case in replevin on its crossbill for possession of the automobile. Natl. Bond & Inv. Co. v. Mound City Finance Co., 161 S.W.2d 664.

Edw. E. Rudolph for respondent.

(1) Plaintiff became the unconditional owner of said automobile upon the payment of the purchase price to Duncan, and the mandatory provisions of Section 8382 (c), R.S. 1939, were complied with. B.E. Crawford v. Gen. Exch. Ins. Corp., 119 S.W.2d 458; Ford v. Graf, 109 S.W.2d 699; Natl. Bond & Inv. Co. v. Mound City Finance Co.; 161 S.W.2d 664. (2) The sale of said Ford automobile was legal and complete in respondent. Otis v. Browning, 59 Mo.App. 326; Fields v. Stagg, 52 Mo. 534; Thummel v. Holden, 149 Mo. 677. (3) The law requires that a demand be first made upon the holder of such stolen or embezzled property before suit can be properly filed. Cooley on Torts, Student's Addition, by John Lewis, sec. 237, p. 430. (4) The Revised Statutes of Missouri do not require that the assignment of a motor vehicle, upon the sale and delivery thereof, be acknowledged by the assignor as his free act and deed. Sec. 8382 (c), R.S. 1939. (5) Evidence is admissible, under the rule of privity of interest, that statements or admissions made by one, who at the time was the owner of the property, real or personal, that the title was not in him, or was passing out of him to another, and is competent against him and all persons claiming under him. Jones on Evidence (2 Ed.) 1911, secs. 239, 240, 241; Calvin v. Smith, 21 Mo. 444; Burgess v. Quinby, 21 Mo. 508; Boynton v. Miller, 144 S.W. 691. (6) If an acknowledgment is required to an assignment by the assignor, then no title was passed. The so-called acknowledgement of date August 21, 1944, has been confessed to be false, and the so-called acknowledgment under date of March 2, 1946, attached as a rider, is not on the original certificate, as required by the statute Section 8382 (c), R.S. 1939. (7) If the evidence failed to establish that Duncan had actual possession of the Ford automobile at the time of making the chattel mortgage thereon, on September 5, 1944, and the said automobile was at the very time claimed by plaintiff, then defendant obtained no right therein. Bell v. Barnes, 87 Mo.App. 453; 11 C.J., sec. 42, p. 433.

Bradley, C. Dalton and Van Osdol, CC., concur.

OPINION

BRADLEY

Plaintiff (respondent) commenced this cause against the appellant bank and the Mississippi Valley Trust Company and Albert D. Duncan. Her petition is in two counts. In the first count she asked cancellation of three mortgages given by defendant Duncan on a car originally owned by Robert Wherry and in the possession of plaintiff. Two of these mortgages were given to defendant bank and one to the Mississippi Valley Trust Company, which company was made a defendant, but later dismissed because it released its mortgage. Plaintiff also asked in her petition that defendant bank be ordered to deliver to her the Wherry certificate of title to said car and that title to the car be vested in her. In the second count plaintiff asked a money judgment against Duncan, a used car dealer from whom plaintiff purchased the car, if she was unsuccessful on the first count. Defendant bank, in its answer, denied that plaintiff had any right to have its mortgage of September 5, 1944, cancelled, and on a cross complaint asked that the court declare that it had a first lien on the car for $ 863, and that the court declare that it had the right to the possession, and that plaintiff be ordered to deliver possession of it.

The trial court found that plaintiff was the owner of the car in question and entitled to the possession thereof; cancelled the bank's two mortgages, and ordered the bank to deliver to plaintiff the Wherry certificate of title which the bank had in its possession, and enjoined the bank from disposing of said certificate. Defendant bank appealed to the St. Louis Court of Appeals. The majority opinion of that court agreed with the trial court except as to form of judgment entered; reversed the judgment and remanded the cause with direction to enter judgment in conformity with the opinion. One of the judges (Judge Anderson) dissented and the cause was certified to the supreme court. See Peper v. American Exchange National Bank et al., 205 S.W.2d 215.

Robert Wherry, as stated, was the original owner of the car involved and the certificate of title issued to him was dated December 9, 1941. Robert was in the Army; his father, Gilbert Wherry, held power of attorney from Robert to sell the car, and had the car and the certificate of title in his possession. March 11, 1944, the father sold the car (a Ford coupe) to defendant Duncan. The father signed his son's name as assignor in the blank assignment form on the reverse side of the certificate of title, but no assignee was named in the blank and there was no acknowledgement. The father did not state in the blank that he signed his son's name by power of attorney; just signed his son's name; Duncan told him that was all that was necessary. March 14, 1944, three days later, Duncan sold the car to plaintiff, and handed to her the Wherry certificate of title in same condition as above described and told her to sign her name at the place provided therein for the assignee, and pointed out to her where to sign. Plaintiff did not have her glasses and asked her daughter (who was present) to write her (plaintiff's) name. Thereupon, Duncan said to plaintiff, "I will tell you what I will do; I will fix this title all up for you and you won't have to bother; I will send it to Jefferson City and have it transferred." So plaintiff's name was not written in the Wherry certificate as assignee. She handed back to Duncan the certificate for him to look after getting a certificate of title to her, and gave him a check for $ 3.50 to pay for the issuance of the new certificate of title and to pay for the transfer to the Ford the number plates on a LaSalle car traded in as a part of the purchase price. Plaintiff then took the Ford into her possession and it remained in her possession. Duncan thereafter inserted his name instead of plaintiff's as assignee in the Wherry certificate assignment blank and on April 14, 1944, gave defendant bank a mortgage on the car to secure a loan and delivered to the bank the Wherry certificate showing in blank Robert Wherry as assignor and Duncan as assignee, but not acknowledged. July 1, 1944, Duncan obtained a loan from the Local Finance Company and gave a mortgage on the car, and on August 3, 1944, he obtained a loan from the Mississippi Valley Trust Company and gave a mortgage on the car, and then on September 5, 1944, he for the second time gave defendant bank a mortgage on the car. The Wherry certificate of title in the condition as above described was deposited, we infer, with each mortgage when the mortgage was given or shortly thereafter. The inference is that Duncan executed the successive mortgages to take up the one immediately prior. The mortgage given to defendant bank on April 14, 1944 was paid off, but the record thereof was not satisfied.

Plaintiff was never able to get Duncan to get her title certificate. In the situation she could not get number plates for the car and it remained idle. Plaintiff finally ascertained that Duncan had inserted his name as assignee in the Wherry certificate and she also ascertained about the mortgages. Thereupon she demanded of defendant bank the Wherry certificate of title; the bank refused to comply and this cause was commenced. At the time of the trial the assignment blank on the reverse side of the Wherry certificate of title had after the name of Robert Wherry the words, "by Gilbert Wherry, attorney in fact." It also showed that Robert Wherry, on August 21, 1944, acknowledged the assignment to Duncan. Also, at the time of the trial, the assignment of title form on the reverse side of the Wherry certificate had pasted thereon a typewritten acknowledgement to the effect that Gilbert Wherry, the father, as attorney in fact for Robert Wherry, acknowledged, on March 2, 1946, the assignment to Duncan. Gilbert...