Universal C.I.T. Credit Corp. v. Vogt

• Decision Date: 13 December 1957
• Docket Number: No. 34266,34266
• Citation: 165 Neb. 611,86 N.W.2d 771
• Parties: UNIVERSAL C. I. T. CREDIT CORPORATION, a corporation, Appellee, v. Hans VOGT, Appellant.
• Court: Nebraska Supreme Court

Page 771

86 N.W.2d 771

165 Neb. 611

UNIVERSAL C. I. T. CREDIT CORPORATION, a corporation, Appellee, v. Hans VOGT, Appellant.

No. 34266.

Supreme Court of Nebraska.

Dec. 13, 1957.

Syllabus by the Court

1. Findings of a court in a law action in which the jury is waived have the effect of the verdict of a jury, and judgment thereon will not be disturbed unless clearly wrong.

2. Comity is neither a matter of absolute obligation, nor mere courtesy or good will, but is the doctrine under which contracts made, rights acquired, and obligations incurred in one state are enforced by

the courts of another state unless there is some definite public policy preventing recognition of such right or title.

3. Apart from failure to comply with local statutes in regard to filing or recording conditional sales contracts, it is not generally regarded as contrary to public policy to enforce the title reserved by the vendor in a conditional sales contract, valid by the law of another state in which the contract was made and the property was then located, as against purchasers in good faith from, or creditors of, the vendee, whose rights attached after the property had been removed to the state of the forum.

4. Whether a sale of a chattel conditioned upon the retention of title by the vendor pending payment of the purchase price is legally effective to keep title in the vendor depends upon the law of the place where the chattel was at the time of the sale. So the requirements of acknowledgment and registration applicable are those of the state of situs of the chattel.

5. Compliance with the certificate of title and registration laws of the state where the contract was made and the motor vehicle was then located, by notation of the lien of a conditional sales contract on the certificate of title, generally gives such lien priority over the rights of third persons acquired in another state after removal of the property thereto.

6. A creditor, by the levy of an execution, acquires no greater rights in the property levied upon than the judgment debtor had at the time of the seizure.

7. The doctrine of caveat emptor applies to all judicial sales in this state, subject to the qualification that the purchaser is entitled to relief on the ground of after-discovered mistake of material facts or fraud, where he is free from negligence. He is bound to examine the title and not rely upon statements made by the officer conducting the sale as to its condition.

O'Hanlon & O'Hanlon, Blair, for appellant.

Mecham, Stoehr, Rickerson & Sodoro, Omaha, for appellee.

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

CHAPPELL, Justice.

Plaintiff, Universal C. I. T. Credit Corporation, brought this action on October 1, 1956, in the district court for Washington County to replevin a 1956 Mercury Tudor Hardtop Monterey automobile from defendant, Hans Vogt. Plaintiff claimed the right of property in and possession of the car as a vendor by assignment for value of a conditional sales contract duly executed, filed, and recorded in Oklahoma where the transaction was consummated, with the lien thereof noted on the certificate of title issued in Oklahoma to the vendee, Johann Leuritsen, who there obtained a registration certificate with the title number and numbered license plates designated thereon, and defendant had constructive and actual notice of plaintiff's rights. Defendant, a judgment creditor of Johann Leuritsen, claimed the right of property in and possession of the car as a bona fide purchaser thereof at an execution sale by the sheriff of Washington County, Nebraska, on October 1, 1956, and the issuance of a Nebraska certificate of title to defendant on that date, free of all liens.

A jury was waived, and upon trial to the court it rendered judgment, finding and adjudging that plaintiff had the right of property in and possession of the car which had in appropriate proceedings been duly returned to plaintiff. It also awarded plaintiff one cent damages, and costs. Defendant's motion for new trial was overruled and he appealed, assigning that the judgment was contrary to the evidence and the law. We do not sustain the assignment. In that connection, it is elementary that such findings have the effect of the verdict of a jury, and judgment thereon will not be disturbed unless clearly wrong. Scottsbluff Nat. Bank v. First State Bank, 162 Neb. 475, 76 N.W.2d 445.

The evidence was either stipulated or without dispute. On May 7, 1956, Leuritsen purchased the car as new from a dealer, Roy Jackson Motor Co. of Antlers, Oklahoma, on a duly executed, valid conditional sales contract, which was thereupon assigned to plaintiff for a valuable consideration by the dealer. A duly certified copy of the original conditional sales contract, which had been filed and recorded on May 10, 1956, in the office of the county clerk of Choctaw County, Oklahoma, where Leuritsen then allegedly resided and the transaction was consummated, was received in evidence. It described the car by make, year, model, and motor number. It designated the vendee or purchaser as 'Johann Leuritsen Gen. Del. Hugo, Okla.,' and the seller as 'Roy Jackson Motor Co. Antlers, Okla.' It recited that there had been a 'Cash Down Payment' of '750.00 * * * leaving a time balance of $2709.60,' which Leuritsen 'promises to pay at the office of' plaintiff's Shawnee, Oklahoma, branch 'in 30 successive monthly instalments, each in the amount of $90.32 * * * All payable the same date of each month * * * The first instalment becomes due * * * June 15, 1956 * * * Title to the car is retained by' plaintiff 'until such balance is fully paid * * *.' Leuritsen agreed 'to keep the car free from liens' and that upon default of payments aforesaid or other conditions unimportant here, plaintiff could repossess the car as owner and retain all payments as compensation for use of the car while in Leuritsen's possession. The installments for June, July, and August, totalling $270.96, were paid by Leuritsen to plaintiff's Shawnee, Oklahoma, branch office, but he failed to pay the installment due September 15, 1956.

On May 7, 1956, when Leuritsen purchased the car, he 'made an application in writing showing that he was a resident of Hugo, Oklahoma and had lived there for six months; * * *.' His 'Application for Oklahoma Certificate of Title' to the car, duly signed, acknowledged, and filed by him on May 7, 1956, again correctly described the car and recited that his address was 'City Hugo, Okla. County Choctaw' and that 'This motor vehicle is subject to a lien: Amount $2709.60 in favor of Roy Jackson Motor Co. Address Antlers, Okla.,' the seller, who was a dealer. It also recited 'Title No. E868448 Motor No. 56SL93517M.'

Leuritsen's 'State of Oklahoma Certificate of Title of Vehicle,' duly issued and filed on May 7, 1956, as 'Original Title No. E868448,' again correctly described the car, with 'Tag Number * * * 1956 58 1597.' It recited that the certificate of title was 'Issued to Johann Leuritsen * * * Hugo * * * Oklahoma' and certified 'that according to the Records of the Oklahoma Tax Commission,' he was 'the owner of the vehicle described in the margin hereof and that the said vehicle is subject to a Lien lien in favor of Roy Jackson Motor Co. Address Antlers, Okla in the amount of $2709.60 Dated 5-7-56.'

Leuritsen's 'Application for Automobile Registration State of Oklahoma Official Registration Certificate' duly subscribed, sworn to, and filed May 7, 1956, recited 'Name of Present Owner Johann Leuritsen * * * P/O. (Home Address) Hugo * * * State Okla * * * If new, date purchased 5-7-56.' It again correctly described the car and noted thereon 'Original Title No. E868448' with '1956 License No. 58-1597.'

Thereupon and thereafter, Oklahoma license plates bearing that license number and the registration certificate aforesaid were conspicuously placed upon and in the car. However, some time subsequently, Leuritsen came to Nebraska with the car, and during the period from July 15, 1956, to and beyond October 1, 1956, he lived and worked part-time in Omana but visited his wife and children who lived in Kennard, Washington County, Nebraska, where some of his children attended school during 1956. While in Omaha, Leuritsen applied for and obtained a wheel tax tag which was fastened to his Oklahoma license plates. Some time after his return to Nebraska, plaintiff's Oklahoma branch office, upon learning that Leuritsen was somewhere in the Omaha area, sent its Omaha office an action request for collection of installments on the car. However, plaintiff looked for Leuritsen there without success, and he actually remitted his July and August installments directly to plaintiff's Shawnee, Oklahoma, branch office. The installment due September 15, 1956, was in default on that date and was never paid.

On April 12, 1955, defendant purportedly obtained a default judgment in the district court for Washington County against Leuritsen and Gladys, his wife, respectively named therein as Johann L. Leuritsen and Gladys V. Leuritsen, for $3,210. In doing so, defendant obtained personal service upon Gladys Lauritsen, and upon Johann Lauritsen by leaving a copy of the summons at his usual place of residence in Kennard, Washington County. A writ of execution thereon issued September 5, 1956, and on September 13, 1956, the sheriff of Washington County, Nebraska, levied same upon the car involved at Kennard in Washington County. The car was thereafter purchased by defendant at the sheriff's sale on October 1, 1956. On that date defendant also obtained a Nebraska certificate of title with out noting any liens thereon, and obtained a Nebraska registration certificate. At the time of levy and sale upon execution, the car had upon it the 1956 Oklahoma license plates, No. 58-1597, and had in it the Oklahoma registration certificate referring to the Oklahoma 'Original Title No. E868-448'...