Opinion
June 16, 1941.
1. — Appeal and Error — Judgment. Where trial was had de novo in trial court on appeal from justice of the peace court without jury and neither declarations of law or findings of fact were requested by parties and none were made or given by court, it became duty of appellate court to affirm judgment rendered below under any theory justified by the pleadings and the evidence.
2. — Appeal and Error — Judgment. Where trial of suit in replevin for recovery of possession of automobile was by trial court without jury and neither findings of facts or declarations of law were asked or shown, and plaintiff produced in evidence its certificate of title duly attested by proper authorities and defendant produced no certificate of ownership, attested or otherwise, wherein his name appears, appellate court was required to affirm the judgment rendered for plaintiff.
Appeal from Jackson Circuit Court. — Hon. Albert A. Ridge, Judge.
AFFIRMED.
O.H. Swearingen for appellant.
(1) Replevin is a possessory action and issues to be determined are the right of possession and the unlawful detention or possession on the part of defendant. R.S. Mo. 1939, sec. 3935; Cook v. Wheeler, 218 S.W. 929. (2) Where the facts are undisputed and the judgment is a mere conclusion of law, it is the duty of appellate court to render such judgment as the trial court should have rendered. Burris v. Shrewberry, 55 Mo. App. 381. (3) Wrongful detention is gist of action in replevin, which must fail if defendant has special property in chattel supporting right of immediate possession. Rankin v. Wyatt, 73 S.W.2d 764. (4) Plaintiff was not guilty of any wrong. He bought the automobile in good faith on July 22, 1937, from Champion Motors, Inc., a dealer who was lawfully in possession, put there by plaintiff. (5) Plaintiff held the certificate of title as security for a loan. No mortgage of personal property is valid against any other person than the parties thereof unless possession of the mortgaged property is delivered to and retained by the mortgagee unless the mortgage be acknowledged and recorded. R.S. Mo. 1939, sec. 3486; Oyler v. Renfro, 86 Mo. App. 321; Rhiel v. Noel, 89 Mo. App. 178. (6) A bill of sale, absolute on its face, may be shown by parol evidence to be a mortgage. Kind v. Greaves, 51 Mo. App. 534. (7) The evidence showed that the certificate of title was intended to be held by plaintiff as collateral security. Abstract of Record, page 60. (8) A bill of sale given to secure a debt is a chattel mortgage. Commings v. Lumber Co., 130 Mo. App. 557. (9) Plaintiff left the automobile with Champion Motors, Inc., a dealer in secondhand cars for re-sale. One of the oldest and most firmly established rules of law is, "If a man leaves his horse at a blacksmith shop to be shod, one buying it from the blacksmith gets no title, but if he leaves his horse at an auction place where horses are sold, one buying it from the auction place gets good title." (10) For a bill of sale to pass title, the grantor must deliver it for that purpose and not for some other purpose. Poplin v. Brown, 200 Mo. App. 255, 205 S.W. 411. (11) Invalidity of bill of sale may be shown in replevin suit and it is not necessary to have it set aside in equity before proceeding in replevin. Fail v. Wells, 268 S.W. 893. (12) It is not denied that Champion Motors, Inc. had personal right to possession of the automobile on July 22, 1937. (13) Plaintiff makes no claim to right of possession of car July 22, 1937. (14) In replevin, anything that tends to controvert directly, ownership and right of possession in plaintiff may be shown under a general denial, even though it extends to the proof of fraud in the acquisition of plaintiff's title. Stern Auction Co. v. Mason, 16 Mo. App. 473; Plow Co. v. Wayland, 81 Mo. App. 310; Beeler v. Perry, 128 Mo. App. 234. (15) Until condition broken, mortgagor is the owner of the mortgaged property subject to the mortgage lien. State v. Norman, 232 S.W. 452; Barnett v. Timberlake, 57 Mo. 499; McMillan v. Graystone, 83 Mo. App. 425. (16) The court will not lend a helping hand to plaintiff to recover property even fraudulently conveyed by persons left in actual charge with right to sell. (17) Plaintiff must recover by strength of its own title and not upon the weakness of defendant's title. Hannibal Inv. Co. v. Schmidt, 113 S.W.2d 1048; Wrather v. Salyer, 274 S.W. 1106. (18) In replevin under a general denial, defendant may show anything which tends to disprove the title or right of possession of plaintiff. Stern v. Mason, 16 Mo. App. 473; Pugh v. Williamson, 61 Mo. App. 165; Gibson v. Mosher, 9 Mo. 256. (19) Defendant may show under a general denial that the instrument under which plaintiff claims the property is fraudulent and void. Beeler v. Perry, 128 Mo. App. 234; Young v. Glasscock, 79 Mo. 574, 81 Mo. 11.
Chet D. Vance and W. Raleigh Gough for respondent.
(1) This court should affirm the judgment below if possible under any theory justified by the pleadings and evidence; the trial court was at liberty to disbelieve the oral testimony of defendant's witnesses, and all the evidence must be viewed in a light most favorable to plaintiff. St. Louis-San Francisco Ry. Co. v. Dillard, 328 Mo. 1154, 43 S.W.2d 1034; Bauer v. White, 225 Mo. App. 176, 29 S.W.2d 176; General Motors Acceptance Corp. v. Thomas (Mo. App.), 33 S.W.2d 1033; Alexander v. Alexander (Mo. App.), 44 S.W.2d 872; Maxey v. Railey Bros. Banking Co. (Mo. App.), 57 S.W.2d 1091; Perrin v. Johnson (Mo. App.), 124 S.W.2d 551. (2) Plaintiff made a prima facie case of title and right of possession by introducing in evidence the certificate of title issued to it by the Secretary of State. Sec. 7774 (c), R.S. 1929 (Sec. 8382 (c), R.S. 1939); 54 C.J. 535. (3) Defendant had no title or interest whatsoever, because he had not received a certificate of title, hence had no defense to the action. State ex rel. Connecticut Fire Ins. Co. v. Cox, 306 Mo. 537, 268 S.W. 87, 37 A.L.R. 1456; Quinn v. Gehlert (Mo. App.), 291 S.W. 138; Isaacson v. Van Grundy (Mo. App.), 48 S.W.2d 208; State ex rel. Isaacson v. Trimble, 335 Mo. 213, 72 S.W.2d 111; Anderson v. Arnold-Strong Motor Co., 229 Mo. App. 1170, 88 S.W.2d 419; Hoshaw v. Fenton (Mo. App.), 110 S.W.2d 1140; Crawford v. General Exchange Ins. Corp. (Mo. App.), 119 S.W.2d 458. (4) The assignment of the Postlewait certificate, was not invalid in that the name of the transferee was not filled in at the time of the endorsement. Crawford v. General Exchange Ins. Corp. (Mo. App.), 119 S.W.2d 458; 3 C.J., secs. 976-977; Bruegge v. State Bank of Wellston (Mo.), 74 S.W.2d 835, 840-841; David Plaut Securities Co. v. Cooper (Mo. App.), 258 S.W. 455. (5) The assignment was not invalid in that it was not properly acknowledged before a Notary Public. Sec. 8382 (c), R.S. 1939; Howell v. Connecticut Fire Ins. Co., 215 Mo. App. 386, 257 S.W. 178, 181 — quashed on certiorari, 306 Mo. 537, 268 S.W. 87, but on another point than the one here cited; Anderson v. Arnold-Strong Motor Co., 229 Mo. App. 1170, 88 S.W.2d 419. (6) It is immaterial that plaintiff waited from May 7, 1937, to July 31, 1937, to procure a new certificate in its own name. (7) The fact that plaintiff also had a chattel mortgage does not affect the case. Hoshaw v. Fenton (Mo. App.), 110 S.W.2d 1140, 1143-1144.
The plaintiff herein filed suit in replevin in the Justice of Peace Court against defendant herein for recovery of possession of a 1935 Graham Touring Sedan automobile. Plaintiff had judgment in the Justice of Peace Court and defendant appealed. Trial was had de novo in the circuit court, jury was waived and trial was by the court. No declarations of law or findings of fact were requested by either party and none were made or given by the court.
Judgment in the circuit court was for plaintiff and in words and figures as follows:
"And afterwards, and on Friday, the 15th day of July, 1938, the same being the 49th day of the May, 1938, Term of said Court, the Court being fully advised in the premises, finds that the judgment of the Justice of Peace theretofore rendered in said cause, should be and the same was in all things affirmed and judgment was entered as follows:
"`Wherefore, it is ordered and adjudged by the Court that the plaintiff have and retain possession of the following described property taken under Writ of Replevin herein, to-wit:
"`One 1935 Graham Touring Sedan, Motor No. 1040070, together with all attachments, thereto and equipment thereon
"`and that plaintiff have and recover of and from defendant and Albert Peace and John V. Nichols, Sureties, all costs herein incurred and that execution issue therefor.'"
From the aforesaid judgment, defendant has duly appealed.
The plaintiff in support of its case introduced in evidence its statement and affidavit filed in the justice of peace court. The statement and affidavit appear to be in due form. Thereafter, plaintiff introduced in evidence its certificate of title to the automobile in question, which certificate is of date of 7/31/37, and is in due form and duly certified to by the Secretary of State and the Commissioner of Motor Vehicles. Thereafter, plaintiff rested its case.
The defendant offered evidence of transaction with Champion Motors Company concerning deal with said company involving the car in issue herein. However, the defendant is not shown to have produced or offered any certificate of title in and to the motor car in question wherein his name appears as owner. The defendant gave oral testimony concerning the purchase from and representations concerning transaction with the Champion Motors Company. However, we find nothing in the defendant's evidence that tends to defeat the prima facie case of ownership shown in plaintiff.
Defendant in his brief makes five assignments of error without assignment of a single reason or the citation of a single authority. Under points and authorities defendant states nineteen abstract propositions with citations of authority. There is nothing in the abstract points made from which we can determine as to what assignment directed, and nowhere in the assignments or points is there found any reference to the record.
As trial below was by the court and neither findings of facts or declarations of law asked or shown, it becomes our duty to affirm the judgment below under any theory justified by the pleadings and the evidence.
As plaintiff produced in evidence its certificate of title duly attested by proper authorities and as defendant has produced no certificate of ownership, attested or otherwise, wherein his name appears, there is but one course open to us on this review. [Perrin v. Johnson, 124 S.W.2d 551.]
Judgment affirmed. All concur.