Rankin v. Wyatt

• Decision Date: 09 July 1934
• Docket Number: 32330
• Parties: S. B. Rankin, Plaintiff, v. J. C. Wyatt
• Court: Missouri Supreme Court

73 S.W.2d 764

335 Mo. 628

S. B. Rankin, Plaintiff, v. J. C. Wyatt

No. 32330

Supreme Court of Missouri

July 9, 1934

Defendant in Error's Motion for Rehearing Overruled July 9, 1934.

Appeal from Jasper Circuit Court; Hon. R. H. Davis, Judge.

Reversed and remanded.

A H. Garner and George V. Farris for plaintiff in error; L. H. Musgrave and C. W. Hamlin of counsel.

(1) The note and chattel mortgage given in this case for a valuable consideration by Gruver to Rankin, plaintiff in error was not void but a valid and enforceable obligation and the court erred in instructing the jury to find the issues for the defendant. C. I. T. Corporation v. Byrnes, 38 S.W.2d 750. (2) Plaintiff being in possession of the automobile in question, this possession was evidence of title and right of possession which wrongdoers may not be heard to dispute. Sullivan v. Gault, 299 S.W. 1116. (3) The mortgagor of the car in question, being a resident of the State of Kansas, and having complied with the law of Kansas, was not required to procure a certificate of title in Missouri before making a valid chattel mortgage on the car. Barone v Glens Falls Ins. Co., 13 S.W.2d 1086. (4) This action being one in replevin, and the plaintiff having shown a primary right to the possession, he is entitled to maintain this action. Wilkison v. Grugett, 20 S.W.2d 936. (5) The chattel mortgage given by Gruver to plaintiff in error was not void for failure of Gruver to have certificate of title at time, and the court's peremptory instructions to find for defendant was error. R. S. 1929, sec. 7774; Morgan v. Mulcahey, 298 S.W. 242; C. I. T. Corporation v. Byrnes, 39 S.W.2d 750.

McReynolds, McReynolds & Flanigan for defendant in error.

(1) By his amended petition herein plaintiff alleged that he was entitled to the possession of the automobile "by reason of a chattel mortgage securing a note, a certified copy of which is hereto attached and made a part of this petition." In making his case he is confined to strict proof of that title. Shellenberger v. Hill, 216 S.W. 542; Weaver v. Lake, 4 S.W.2d 834. (2) Plaintiff must recover on the strength of his own title, not on the weakness of defendant's. Schick v. Rehkop, 237 S.W. 209; Brunk v. Salinger, 8 S.W.2d 88; Johnston v. Brown, 231 S.W. 1011, 208 Mo.App. 189. (3) Wyatt, as attaching creditor, was ahead of mortgagee Rankin whose mortgage was filed January 8, 1931, three days after the levying of the attachment. Cummins v. King, 266 S.W. 748. (4) The original sale of the automobile to P.C. Gruver without contemporaneous transfer of Sleight's certificate of title was void. R. S. 1929, sec. 7774; State ex rel. v. Cox, 268 S.W. 87, 306 Mo. 537; Plattner v. Bourne, 275 S.W. 590; Weaver v. Lake, 4 S.W.2d 834; Wilson Motor Co. v. Jenkins, 284 S.W. 190; Quinn v. Gehlert, 291 S.W. 138; Mathes v. Westchester Fire Ins. Co., 6 S.W.2d 66. (5) The fact that Gruver later obtained a certificate of title from the Secretary of State does not relate back so as to validate his mortgage to Rankin. France v. Thomas, 86 Mo. 80; Scudder v. Bailey, 66 Mo.App. 40.

Fitzsimmons, C. Cooley and Westhues, CC., concur.

OPINION

FITZSIMMONS

This case comes to the writer by reassignment. It was transferred to us by the Springfield Court of Appeals for the stated reason that the opinion of that court is in conflict with an opinion of the St. Louis Court of Appeals. We treat cases thus acquired from the appellate courts as if they had come to this court in the first instance. In the instant case the main opinion of the Springfield Court of Appeals is reported in 48 S.W.2d 88, and the opinion upon a motion for rehearing in 49 S.W.2d 243. In this latter opinion the ground of transfer is stated. For convenience plaintiff in error will be called plaintiff and defendant in error will be called defendant.

Plaintiff brought a statutory action in replevin against defendant in the Circuit Court of Jasper County for the recovery of possession of a certain Chevrolet automobile of the stated value of $ 300. At the close of the plaintiff's case the trial court sustained defendant's demurrer to the evidence and in due course plaintiff took the case by writ of error to the Springfield Court of Appeals. The latter court reversed the judgment and remanded the cause (48 S.W.2d 88) upon the theory that the plaintiff in replevin can recover against a trespasser by proof of prior possession alone without proving title or proving that he was in fact legally entitled to the possession. The questions raised by this appeal require us to examine the pleadings.

In the amended petition plaintiff stated "that on or about the 23rd day of December, 1930, plaintiff was and ever since has been entitled to the possession of said automobile and now is entitled to immediate possession of the automobile above described by reason of a chattel mortgage securing a note, a certified copy of which is hereto attached and made a part of this petition." The amended petition also alleged that on or about April 16, 1931, defendant "maliciously, without cause, without any process of law, without title or color of title, stole, took into his possession unlawfully the automobile herein mentioned," and that at the time of the filing of the petition, defendant continued to hold possession of the property.

Defendant, by his answer, admitted that the automobile was of the value of $ 300 and denied all other allegations in the amended petition. The answer also charged that P. C. Gruver, who executed the chattel mortgage mentioned in plaintiff's amended petition acquired possession of the automobile in a transaction for the purchase of it by him from the R. & S. Motor Sales Company, but the sale was fraudulent and void and no title vested in Gruver because the automobile at the time of the pretended sale was registered in the office of the Secretary of State in the name of H. B. Sleight, in whom there was outstanding at the time, a certificate of ownership, and that when Gruver acquired possession of the automobile from the R. & S. Motor Sales Company there was not delivered to Gruver any lawful certificate of ownership or any certificate indorsed by the holder thereof with warranty of title in form printed thereon as required by Clause C, Section 7774, Revised Statutes 1929. Upon this state of facts the answer rested the charge that the pretended sale of the automobile to Gruver was void and he acquired no title thereto and that plaintiff's mortgage was void because taken from one who was not the owner of the automobile covered by the mortgage.

The substance of the evidence which is to guide us in passing upon the trial court's decision to sustain defendant's demurrer is as follows: The R. & S. Motor Sales Company at Carthage, Missouri, sold the car in suit, new, to a Mr. Sleight who obtained a certificate of ownership from the Missouri Commissioner of Motor Vehicles. For reasons that may be inferred the motor sales company repossessed itself of the car but it did not receive from Mr. Sleight his certificate of ownership. In the Spring of 1929, the R. & S. Motor Sales Company sold the car at Carthage, Missouri, to P. C. Gruver for $ 450, payable $ 200 cash, balance by note secured by chattel mortgage upon the car. As Mr. Sleight had not indorsed or delivered back the certificate of ownership, the motor sales company was unable, at the time of sale of the car to Gruver, to give to the latter the certificate. But the company gave to Mr. Gruver a bill of sale, with which he went to Pittsburg, Kansas, and there on May 2, 1929, he obtained in his own name a Kansas certificate of ownership and license. Gruver gave as a reason for the Kansas certificate and license that, at the time, he resided in Pittsburg, Kansas. Later, on April 24, 1931, Gruver obtained in his own name a Missouri license for the car. This he did after the taking of the car by defendant and after the execution by Gruver of certain mortgages to plaintiff.

During the year 1929 and 1930, Gruver became indebted to plaintiff Rankin for sundry sums which Rankin had advanced. In addition Rankin paid off a balance of $ 100 due on Gruver's mortgage to the motor sales company. The result was a total obligation from Gruver to Rankin of $ 315 for which Gruver gave to Rankin his promissory note, secured by a mortgage on the automobile. These instruments were dated December 23, 1930, and were in effect when defendant took possession of the automobile on April 16, 1931. Gruver gave plaintiff Rankin another promissory note and mortgage on the car April 18, 1931. While Gruver testified that the second mortgage was in payment of the first, Rankin produced both mortgages at the trial. Rankin explained that he lived in Greene County and he desired a mortgage which would be of record there rather than in Jasper County where the first mortgage from Gruver to Rankin was on file.

On or about January 5, 1931, defendant Wyatt sued Gruver for debt before a justice of the peace in the village of Republic in Greene County, and, in aid of his action, caused an attachment to be levied upon the automobile. The constable took possession of the car under the attachment. Plaintiff Rankin filed a third party claim, based upon his mortgage which was the one of December 23, 1930. Defendant Wyatt thereupon abandoned the attachment suit and released the attachment. The constable surrendered the car to plaintiff Rankin, and the latter departed to obtain a new battery, leaving the car in the village where the constable had held it. During Rankin's absence, defendant Wyatt seized the car, on or about April 16, 1931, and drove it to Carthage. There Rankin found it and brought his replevin action in the Circuit Court of Jasper County.

Gruver and plaintiff Rankin also...