Credit Bureau of San Diego, Inc. v. Wolf

California Court of Appeal Sep 26, 1949 No. Civ. 3955Published

Before: Mussell

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Holding. The court held that the transfer of the automobile was not void under Civil Code section 3440 because the transferor did not have possession or control of the property at the time of the transfer, and there was sufficient evidence of a change of possession.

Issues

Whether the transfer of the automobile was conclusively presumed fraudulent and void under Civil Code section 3440 due to a lack of immediate delivery and continued change of possession.
Whether the transferor had the requisite possession or control of the property at the time of the transfer to trigger the requirements of Civil Code section 3440.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“Whether there was a sufficient delivery and change of possession to satisfy the requirements of the statute was a question of fact for the trial court.”

“Under such circumstances the provisions of the code section do not apply since Wolf was not the “person having at the time the possession or control of the property sold.””

MUSSELL, J.

Plaintiff appeals from a judgment in favor of a third party claimant in proceedings had under the provisions of section 689 of the Code of Civil Procedure to determine title to an automobile which had been attached by plaintiff.

The defendant Myron Samuel Wolf, prior to July 22, 1948, was the registered owner, and the General Motors Acceptance Corporation the legal owner of a 1948 Cadillac convertible automobile. On July 18th or 19th, the General Motors Acceptance Corporation took the ear from defendant Wolf because of his default in payments due on the purchase price. The car was stored in a garage and demand was then made on Wolf for payment of the balance due. Wolf being unable to pay, the car was repossessed by the Acceptance - Corporation.

On or about the 25th of June, 1948, defendant Wolf obtained a loan in the sum of $500 from the third party claimant, Elbert L. Crow. After Crow had repeatedly asked Wolf to pay the loan it was suggested by Wolf, after the ear was repossessed, that Crow take it in payment of the debt. Crow then went to the office of the Commercial Credit Plan, Incorporated, and made arrangements to purchase the car. He obtained an authorization for “pay-off,” signed by Wolf, which authorized the General Motors Acceptance Corporation to accept the sum of $2,617.07 from the Commercial Credit Plan, Inc., in payment of the balance due on his account and authorized the surrender of the documents of title properly endorsed and released. Mr. Arthur, a representative of Commercial

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Credit Plan, Inc., called General Motors, found out where they had stored the car and personally investigated the automobile as well as the financial responsibility of Mr. Crow. Commercial Credit Plan, Inc., then paid General Motors the sum of $2,617.07 and took a note from Crow in the sum of $2,933.04, secured by a chattel mortgage on the car. The note was payable at the rate of $244.42 per month and the first payment was due August 25, 1948. Crow took possession of the car which was delivered to him by the Commercial Credit Plan, Inc., and made the monthly payments until December 31,1948, when the car was attached. Mr. Crow testified that on several occasions he permitted Wolf to use the Cadillac for business purposes and it was on one of these occasions that the car was attached while in Wolf’s possession.

Credit Bureau of San Diego, Inc. v. Wolf

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MUSSELL, J.

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