Wargin v. Wargin

SHENK, J.

This is an appeal from a judgment against a third party claimant in a proceeding to try title to personal property levied on under a writ of execution.

The defendant, Emil M. (Milan) Wargin, was in arrears in payments to his former wife, the plaintiff Esther Wargin, to the extent of $1,200 of the periodical sums awarded by a decree of divorce for the support of their minor child. On the plaintiff’s application a writ of execution issued and, on May 15, 1945, was levied on a Plymouth sedan automobile. Ida McCleary, mother of Ona Wargin, the defendant’s present wife, filed a verified third party claim, averring that she was the sole owner of the automobile. A proceeding to try title followed. It was the judgment of the court that Ida Mc-Cleary was not the owner of the automobile. From that judgment she prosecutes this appeal.

It is unquestioned that about February 21, 1945, there was an attempt to transfer title to the automobile from Milan Wargin, in whose name title stood, to Ida McCleary. It is also without dispute that prior to the levy of the writ of execution a transfer of the title was not effected in accordance with the requirements of section 186 of the Vehicle Code. That section provides that any attempted transfer shall not be effective unless and until the parties have fulfilled the prescribed requirements.

The appellant urges that the judgment creditor stands in the shoes of the judgment debtor in respect to ownership of the property. She contends that the doctrine of estoppel applies to the defendant in the attempted transfer, and that therefore the plaintiff as the judgment creditor is also precluded from denying the title of the transferee.

[845]

The appellant relies on the rule of estoppel expressly announced in section 186 of the Vehicle Code in 1935 (Stats. 1935, p. 93, 118) but deleted in 1943 (Stats. 1943, p. 3072). In the period between those years the section provided that an attempted transfer of ownership of a motor vehicle should not be effective for any purpose until the transfer of registration was made and the required certificates issued, “except as a transferor may be estopped by law to deny a transfer. ’ ’ It may be assumed that the omission of the quoted provision in the section as it now reads did not change the law regarding the application of the principles of estoppel in proper cases. The correctness of the invoked doctrine as a principle of law has been recognized. (See