Shaw v. Allied Finance Co.

• Decision Date: 23 October 1959
• Docket Number: No. 15513,15513
• Citation: 330 S.W.2d 690
• Parties: M. T. SHAW et al., Appellants, v. ALLIED FINANCE COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 690

330 S.W.2d 690

M. T. SHAW et al., Appellants, v. ALLIED FINANCE COMPANY, Appellee.

No. 15513.

Court of Civil Appeals of Texas, Dallas.

Oct. 23, 1959.

Rehearing Denied Dec. 11, 1959.

Walker, Day & Harris and Don E. Burdette, Fort Worth, for appellants.

Locke, Purnell, Boren, Laney & Neely and J. L. Shook, Dallas, for appellee.

DIXON, Chief Justice.

This appeal presents a question of venue.

Appellee Allied Finance Company brought suit in Dallas County, Texas, against Marvin W. Parker on a note and mortgage, both of which instruments are by their express terms made payable in Dallas County, Texas. M. T. Shaw was joined as a party defendant, it being alleged that he claims an interest of some kind in the automobile against which foreclosure is sought by appellee, Allied Finance Company.

Shaw filed a plea of privilege seeking to have the cause of action against him transferred to Tarrant County, Texas, where he resides. He has appealed from an order overruling his plea.

Appellee's amended petition states that Marvin W. Parker cannot be located but alleges on information and belief that he is now in the Republic of Cuba. The petition then set out a cause of action against Parker on the past due note and mortgage executed by Parker payable in Dallas County. Service of citation was obtained on Parker under Rule 106, Vernon's Ann.Texas Pules.

The nature of appellee's claim as to appellant Shaw is set out in appellee's petition as follows: 'That heretofore on or about the 14th day of March, 1958, Plaintiff filed this suity by filing its Original Petition, and at the same time filing Affidavit for Sequestration and a Sequestration Bond, * * * that the Writ of Sequestration was delivered by Plaintiff to the Sheriff of Wise County, Texas, on March 14, 1958, and at the same time Citation was served on M. T. Shaw the Sheriff of Wise County made demand on the said M. T. Shaw for the automobile described in such Writ and herein as being a 1958 Cadillac Sedan DeVille, Motor No. 58L017222, of the value of Five Thousand Dollars ($5,000.00); that the said M. T. Shaw stated to such Sheriff and in the presence of numerous witnesses, including employees of the Plaintiff, and a Highway Patrolman, A. W. Elliott, who resides in Decatur, that he had possession of the automobile, and that he refused to deliver such automobile to the Sheriff or anyone else; that he had no intention of surrendering possession to the Plaintiff or the Officers of this Court or anyone else; * * * M. T. Shaw has no title to the motor vehicle and has no right to hold same against this Plaintiff, the owner of a valid first lien, noted on the only valid Certificate of Title outstanding on said motor vehicle. * * * The said Marvin W. Parker attempted to sell such vehicle to various persons unknown to Plaintiff, and finally delivered such automobile to the Defendant M. T. Shaw of Hurst, Texas, under some agreement, the nature and extent unknown to plaintiff, but which in any event could not affect Plaintiff's first valid and subsisting lien and which could not confer on M. T. Shaw any rights equal to or superior to the rights of Allied Finance Company under its first, valid and subsisting lien noted on the Motor Vehicle Certificate of Title; that said automobile has on occasion been removed from the State of Texas, and carried to the State of California, where an attempt has been made to sell same to various automobile dealers, and also likewise into the State of Nevada, in Reno and Las Vegas, where attempts were made to sell such motor vehicle; that Allied Finance Company has used all diligence to locate such vehicle and has expended the sum of $300.00 in an attempt to locate and repossess such vehicle and M. T. Shaw, because he did not have either the Manufacturer's Certificate or a valid State Certificate of Title or for some other reason has been unable to dispose of such automobile, and same is now located in the State of Texas, either in or around Hurst, Texas, and Plaintiff is entitled to have the officers of this Court take possession of such automobile under the Writ of Sequestration to be issued herein and to hold same, subject to the further orders of this Court; * * *'.

The evidence as to appellee's claim is uncontradicted. On January 3, 1958, Marvin W. Parker executed a note and mortgage in the amount of $5,726.16 to appellee Allied Finance Company to finance his purchase of a Cadillac automobile. The transaction took place at appellee's office in Irving, Texas. Parker held a license as an automobile dealer. On the occasion in question the drove the car to the loan company's office and presented a manufacturer's certificate of origin from the Cadillac Motor Car Division of General Motors Corporation. Parker is the last named assignee in said certificate.

The car itself bore license plates of the State of Alabama. This occasioned no concern to the loan company's manager, for he was aware that Alabama is not a title State--that is, it does not have a title certificate law such as is in effect in Texas and most States. All that is necessary in Alabama is for a car owner to register his car and receive a tax certificate. Parker explained that when he bought the car it was carrying Alabama plates, and he had merely left them on the car until he could get his Texas license plates.

Parker surrendered his manufacturer's certificate of origin to appellee loan company and signed an application for a title certificate as required by Texas law. The loan company manager together with a used car dealer named Valentine checked the automobile and found that the motor number shown on a piece of plastic material riveted to the automobile door post was the same as the motor number shown on the manufacturer's certificate. The loan company then sent the manufacturer's certificate and Parker's application for a title certificate to the Tax Collector of Dallas County. The Tex Collector issued his receipt and the papers were forwarded to Austin, Texas, for the issuance of a title certificate. In due time the State Highway Department forwarded a title certificate dated January 3, 1958, showing that Marvin W. Parker is the owner of the car, and that Allied Finance Company is the owner of a mortgage against it for $5,726.16. This procedure was in compliance with the requirements of the Texas Certificate of Title Act, Art. 1436-1, Vernon's Penal Code of Texas.

On the manufacturer's certificate which Marvin W. Parker surrendered to the loan company he is shown as the assignee in a third endorsement, having received the certificate from the second assignee Phillip McCray, whose signature is shown in the third endorsement as the assignor of the instrument to Parker. The name of Loran W. May is shown on the third endorsement as a notary public before whom the acknowledgment of Phillip McCray was taken. At the hearing on the plea of privilege Loran W. May testified that the signature is not his, and that he had not acted as a notary public. His testimony is uncontradicted that his purported signature as a notary is a forgery.

However the genuineness of the signature of Phillip McCray as assignor is not attacked. It was not the assignment itself which was forged; the foregery under the evidence before us was of the notary's signature only.

Marvin W. Parker made no payments on his note and mortgage. Appellee's efforts to contact him in regard to his past due payments were unsuccessful. It developed that soon after he had obtained his loan from appellee, he sold his home in Irving, Texas, and departed for parts unknown. Appellee filed suit against Parker and Shaw.

Appellee also sued out a writ of sequestration against Shaw, who at first claimed he did not know where the car could be found. Contempt proceedings were then instituted against Shaw. The location of the car was disclosed. The Sheriff of Tarrant County took possession of the carunder a writ of sequestration. The contempt proceedings against Shaw were dismissed.

Later a receiver, duly appointed by the trial court, after extended efforts took possession of the car and, so far as the record shows, the car is still in the receiver's possession in Fort Worth, Texas. Appellant Shaw gave notice of appeal from the order appointing a receiver and executed a $500 appeal bond. However, so far as the record shows he did not further prosecute said appeal.

The evidence pertaining to Shaw's claim is also undisputed. Marvin W. Parker contacted Shaw and effected a purported sale of the car to Shaw. Parker did not endorse his manufacturer's certificate to Shaw, or surrender the certificate itself to Shaw. As evidence of the transfer of ownership to Shaw, Parker merely executed a bill of sale which he dated December 13, 1957. He also surrendered to Shaw a bill of sale by which he supposedly had acquired title to the car from Joe B. Lowry on December 10, 1957, in Livingston, Alabama. On this bill of sale from Joe B. Lowry to Parker the name of Loran B. May appears as a notary public who took Lowry's acknowledgment to the instrument.

Joe B. Lowry testified at the hearing on appellant's plea of privilege. He is Parker's first cousin. He lives in Irving, Texas. He testified that the signature on the bill of sale to Parker is not his signature. He did not sell the car to Parker. He never owned the automobile in question. He has never been in Livingston, Alabama.

Loran W. May also testified. He stated that the notary's purported signature on the forged bill of sale from Joe B. Lowry to Parker is not his signature. He never acted as notary in connection with the alleged sale of the car to Parker.

Under the uncontradicted evidence before us Shaw's interest in the car, whatever it may be, is based on a forged instrument, namely, the forged bill of sale from Lowry to Parker.

On February 12, 1958, Shaw undertook to transfer title to the car to R. V. Stegall of Fort Worth, Texas, also an automobile dealer. This purported...