Opinion
May 24, 1938.
June 17, 1938.
Motor vehicles — Title — Certificate — Liens or encumbrances — Notation — Delivery by Secretary of Revenue to lien holder — Acts of June 29, 1937, P. L. 2329, and May 1, 1929, P. L. 905.
1. A petition for a writ of alternative mandamus to compel the Secretary of Revenue to issue to petitioner a certificate of title to an automobile, clear of any encumbrance, was properly refused, where it appeared from the records of the Department that the motor vehicle was subject to an encumbrance in favor of a third person not a party to the proceeding. [158-62]
2. Under the Act of June 29, 1937, P. L. 2329, amending section 208 of the Act of May 1, 1929, P. L. 905, where a first lien, encumbrance or legal claim upon a motor vehicle is held by another, the Secretary is required to deliver a certificate of title containing thereon a statement of the lien, encumbrance or legal claim to the person holding such lien, encumbrance or legal claim, to be retained by the latter until the entire amount of the claim has been paid by the owner of the motor vehicle. [160-61]
Argued May 24, 1938.
Before KEPHART, C. J., SCHAFFER, MAXEY, DREW, LINN, STERN and BARNES, JJ.
Appeal, No. 39, May T., 1938, from decree of C. P. Dauphin Co., Commonwealth Docket, 1938, No. 51, in case of National Cash Register Company v. J. Griffith Boardman, Secretary of Revenue, of the Commonwealth of Pennsylvania. Decree affirmed.
Petition for writ of alternative mandamus.
The facts are stated in the opinion of the lower court, by RICHARDS, P. J., specially presiding, as follows:
On January 20, 1938, the petitioner presented a petition for a writ of alternative mandamus requiring the defendant to issue a certificate of title for a certain automobile to the plaintiff, or show cause why he should not do so. On the same date, the Court directed the issuance of the writ. On February 2, 1938, the defendant filed a motion to quash said writ for the reason, inter alia, that he had no duty to issue the certificate of title without noting thereon a lien recorded in the records of his office.
From the petition filed and the Exhibits attached thereto, it appears that the National Cash Register Company of Dayton, Ohio, sold a Ford Tudor Convertible sedan, motor No. 2342465, to J. J. Mallon. The agreement of the parties was in writing and signed by the purchaser on the day of January, 1936. It was accepted by W. A. Wirth, Sales Agent, on January 3, 1936. The contract provided that title to said car was to remain in the National Cash Register Company until the purchase price of Seven Hundred Sixty-five and 68/100 dollars ($765.68) was paid in full. This amount was to be paid by making monthly charges against the commission account of Mallon.
The automobile involved was delivered to Mallon and by some undisclosed means, he received a certificate of title without any notation of any encumbrance in favor of the plaintiff.
The contract of sale was recorded in the office of the Prothonotary of Philadelphia County, on February 27, 1936.
On or about September 26, 1936, the contract of Mallon as a salesman was cancelled, at which time he owed a balance of Two Hundred Ninety-five and 22/100 dollars ($295.22).
On October 6, 1936, the plaintiff brought a replevin proceeding against Mallon in the County of Philadelphia, for the recovery of the automobile. No answer was filed and judgment was rendered in favor of the plaintiff. The automobile was repossessed and has been in the possession of the plaintiff since about that date.
In the meantime Mallon had caused an encumbrance to be noted on the certificate of title for said automobile in favor of A. J. Lehneis, No. 3104 N. Patton Street, Philadelphia, Pa. The date of entry of the encumbrance, and the circumstances incident thereto are not divulged in the pleadings.
On July 17, 1937, the plaintiff applied to the defendant for a certificate of title, and paid the requisite fee. The defendant refused to issue the certicate of title without noting the lien in favor of Lehneis, which lien was a matter of record in his Department. The plaintiff thereupon presented its petition for a writ of alternative mandamus, as above mentioned.
DISCUSSION.It will be noted that the defendant did not refuse to issue a certificate of title. He did refuse to issue a certificate of title which failed to disclose the encumbrance contained in the records of his Department. What the plaintiff really seeks is to compel the defendant to issue to it a certificate of title without a notation of said encumbrance.
It should be observed that the plaintiff made proper application for a certificate of title on July 17, 1937, at which time the Act of May 1, 1929, P. L. 905, Section 208, as amended by the Act of May 25, 1933, P. L. 1059, applied to the situation. In the meantime an Act was passed on June 29, 1937, which amended Section 208 in some material respects. The effective date of the amended Section 208, was September 1, 1937. The petition for the writ having been presented on January 20, 1938, the law applicable to the situation is the amendment of 1937 aforesaid.
Section 208, deals with the change of ownership by operation of law and judicial sale. This Section provides: "In the case of the transfer of ownership or possession of a motor vehicle . . . by operation of the law as upon . . . replevin . . . it shall thereupon become the duty of the person from whose possession such motor vehicle . . . was taken if there are no liens, encumbrances or legal claims thereon and without prejudice to his rights in the premises, immediately to surrender his certificate of title to such motor vehicle . . . to the person to whom possession of such motor vehicle . . . has so passed.
"The Secretary, upon surrender of prior certificate of title or when that is not possible, or when the certificate of title for such motor vehicle . . . is held by the person holding a first lien, encumbrance or legal claim thereon, upon presentation of satisfactory proof to the Secretary of ownership and right of possession, to such motor vehicle . . . may issue to the applicant to whom possession of such motor vehicle . . . has so passed, a certificate of title thereto.
"But, where a first lien, encumbrance or legal claim upon such motor vehicle . . . is held by another, the Secretary shall deliver the said certificate of title, containing thereon a statement of the liens, encumbrances or legal claims upon such motor vehicle . . . to the person holding such first lien, encumbrance or legal claim, which shall be retained by such person until the entire amount of such first lien, encumbrance or legal claim shall be fully paid by the owner of said motor vehicle . . . when the said certificate of title shall be delivered to the said owner by the person who held the first lien, encumbrance or legal claim, with proper evidence of the satisfaction of the same."
By the above law, the defendant is required where there is a first lien, encumbrance or legal claim upon a motor vehicle, which is held by another, to deliver the certificate of title, containing thereon a statement of liens, encumbrances or legal claims upon such motor vehicle, to the person holding such first lien, encumbrance or legal claim. This certificate of title shall be retained by the person holding the encumbrance until the entire amount of such encumbrance shall be fully paid by the owner of the vehicle. It thus appears that the plaintiff is seeking to compel the defendant to perform an act which is in direct violation of the law relating to the situation, viz.: It is endeavoring to compel the defendant to issue to it a certificate of title which does not disclose the encumbrance, and which action would in fact be contrary to the records of his Department.
We feel that the duty of the defendant is plain under the existing situation: First, to issue a certificate with notation of the lien; and secondly, to deliver the certificate of title to the holder of the encumbrance. It would therefore be beyond the province of the Court to order or direct the defendant to issue a certificate of title in direct violation of the provisions of the law.
It may be noted, that there is no way to judicially determine in this proceeding the validity of the encumbrance, as the holder thereof is not a party.
And now, March 21, 1938, the motion of the defendant to quash the writ of alternative mandamus is sustained, the writ is hereby quashed, and the petition dismissed at the cost of the plaintiff.
Petitioner appealed.
Error assigned was judgment.
George L. Reed, with him Horenstein Harvey, for appellant.
George W. Keitel, Assistant Deputy Attorney General, with him Guy K. Bard, Attorney General, for appellee.
This case is affirmed on the opinion of President Judge RICHARDS, specially presiding in the court below.
Decree affirmed.