Terry Bros. & Meves v. National Auto Ins. Co., No. 33644

• Court: Supreme Court of Nebraska
• Writing for the Court: Heard before SIMMONS; MESSMORE
• Citation: 69 N.W.2d 361,160 Neb. 110
• Decision Date: 18 March 1955
• Docket Number: No. 33644
• Parties: TERRY BROS. & MEVES, a Partnership, Appellee, v. NATIONAL AUTO INS. CO., a Corporation, Appellee, Gibreal Auto Sales, Inc., a Corporation, Intervener-Appellant.

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69 N.W.2d 361 160 Neb. 110 TERRY BROS. & MEVES, a Partnership, Appellee,
v.
NATIONAL AUTO INS. CO., a Corporation, Appellee,
Gibreal Auto Sales, Inc., a Corporation, Intervener-Appellant. No. 33644. Supreme Court of Nebraska. March 18, 1955. Syllabus by the Court.

1. A certificate of title of a motor vehicle is generally conclusive evidence in this state of the ownership of the vehicle.

2. An innocent purchaser is one who buys property for a present valuable consideration without knowledge sufficient to charge him in law with notice of any infirmity in the title of the seller.

3. The general rule is that where one of two innocent persons must suffer by the acts of a third, he whose conduct, act, or omission enabled such third person to occasion the loss must sustain it if the other party acted in good faith, without knowledge

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of the facts, and altered his position to his detriment.

4. In a law action findings of fact made by the court have the same force and effect as the verdict of [160 Neb. 111] a jury, and if there is competent evidence to support them, such findings will not be disturbed on appeal.

Floersch & Floersch, Omaha, for intervener-appellant.

W. P. Lauritsen, Grand Island, for Terry Bros. & Meves.

Hyman Polsky, Lincoln, for National Auto Ins. Co.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE and BOSLAUGH, JJ.

MESSMORE, Justice.

This is an action in replevin brought by Terry Bros. & Meves, a partnership, as plaintiff, against the National Auto Insurance Company, a corporation, as defendant, to secure possession of a 1948 Mercury convertible coupe. Gibreal Auto Sales, Inc., a corporation, by leave of court, was granted a right to intervene and filed a petition in intervention claiming the ownership of said automobile. A jury was impaneled and the cause proceeded to trial. During the progress thereof, by agreement of the parties, the jury was dismissed and the cause proceeded to trial before the trial judge. The trial judge rendered judgment in favor of the plaintiff and against the defendant and the intervener, finding that the plaintiff was the owner of the automobile in question and entitled to possession of it. The trial judge rendered judgment in favor of the plaintiff and against the defendant for damages in the amount of one dollar for illegal detention of the automobile, and costs of the action. The intervener filed a motion for new trial which was overruled. From this order, the intervener appealed.

The plaintiff filed a petition in which it alleged in substance that it was a partnership; that it was the owner of and entitled to the immediate possession of a 1948 Mercury convertible coupe; and prayed judgment against the defendant for the return of the automobile or the value of the same if not returned, and for damages[160 Neb. 112] and costs. The plaintiff also filed an affidavit of replevin in due form. Possession of the automobile was delivered to the plaintiff and a replevin bond was filed by the plaintiff after an appraisal of the automobile was made in the amount of $925.

The defendant's answer to the plaintiff's petition was a general denial of the allegations contained therein.

By leave of court, the intervener filed a petition in which it claimed that it was the owner of the automobile in question and entitled to the possession of the same or its value in the event the same was not returned. This petition detailed certain facts and alleged the same constituted a fraud perpetrated on it by Bethke, the purchaser of the automobile from the intervener.

The answer of the plaintiff to the intervener's petition was in effect a general denial of a fraud as pleaded therein, and an affirmative allegation that the fraud or false representations made by the intervener's vendee were made possible by the actions of the intervener, and further denied generally the allegations contained in the intervener's petition.

The reply of the intervener to the answer of the plaintiff was in the form of a general denial.

The record discloses that on January 4, 1950, Gilbert Gibreal, president of the intervener corporation and hereafter referred to as Gibreal, through the intervener sold a 1948 Mercury convertible coupe to Roy Bethke under a conditional sales contract for $1,150, the purchaser to pay $50 down, which he failed to do. The possession of the car was turned over to Bethke, but the title to it was not given to him. On January 24, 1950, Bethke told Gibreal that he

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was stopped by a policeman for not having proper license plates and the car was impounded. He requested the certificate of title to enable him to buy his license and get the car from the police station because he was required to have a license before it would be surrendered to him. Gibreal transferred the certificate of title to Bethke. Bethke called [160 Neb. 113] Gibreal from the court house and informed him that he had to pay last year's taxes on the car before he could obtain the certificate of title and needed $35 for that purpose. Gibreal did not advance this money, but asked Bethke if he had the certificate of title, which he had. Gibreal then asked Bethke to return the title immediately. He did not do so. Gibreal looked for Bethke, and the next morning found him and Orville Bilyeu and two other men walking toward the police station with license plates. Gibreal asked for the title to the car. Bethke said it was at home, and Gibreal told him it would be impossible to get the car unless he had the title. Gibreal said he wanted it right away. Bethke and Bilyeu left to get the title and said they would return in half an hour, but they failed to do so. Gibreal went to the police station and informed the police what happened and was permitted to take possession of the car. Bethke called Gibreal by telephone and told him he would have the title, that he had borrowed the money to pay the taxes from Orville Bilyeu, and would have to pay back the money before he could get the title. He did not advise Gibreal that he had transferred the title to Bilyeu. Gibreal further testified that he did not learn of this fact until he saw a photostatic copy of the certificate of title later. It appears that Gibreal was informed that Bethke owed Bilyeu a gambling debt and Bilyeu refused to surrender the title to the car. Gibreal sold the car to Larry Slayman on February 20, 1950, advising Slayman that he was having...