Mercantile Acceptance Corp. v. Pioneer Credit Indemnity Co.

THOMPSON (R. L.), J.

The defendants appealed from a judgment in favor of the plaintiffs in a suit to replevin an automobile which was seized by an officer under a writ of execution. The court found that the plaintiffs were the owners and entitled to the possession of the car, and that the defendants wrongfully and unlawfully took and retained the possession thereof. It is claimed the findings and judgment are not supported by the evidence. This contention must be sustained.

In June, 1929, Norma J. Podva purchased a Nash sedan automobile on a conditional contract for $1185 from the plaintiff Chavalis, who operated an agency for the sale of N'ash machines under the name of New Fruitvale Nash Company, at Oakland. This contract was assigned to the plaintiff Mercantile Acceptance Corporation. This corporation was the registered legal owner of the car. The purchase price had been fully paid, except the sum of $168. The purchaser was the registered owner thereof.

On November 1, 1930, Norma J. Podva executed a bill of sale of the Nash sedan automobile to her mother, Mrs. George Chiflakos, in consideration of an existing indebtedness for money previously advanced for her schooling. November 5th, Mrs. Chiflakos called upon the agent, Chavalis, and requested a loan to be secured by the automobile. He loaned her a sum of money in excess of $600. From

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this sum of money he paid the Mercantile Acceptance Corporation $168, which was the entire balance of the original purchase price of the car. At the same time he executed a new conditional contract with Mrs. George Chiflakos, payable in eighteen monthly installments of $41.91. This new contract was dated November 5th. On the last-mentioned date, this new contract was assigned to the Mercantile Acceptance Corporation. There was no change in the registered legal ownership of the car. The registered certificate of ownership was not issued to Mrs. Chiflakos until November 20th. The plaintiff Chavalis testified with respect to the last transaction: “Mrs. Chiflakos . . . said she wanted to borrow some money on the automobile. ... I paid off the car (the amount) that was due to the Mercantile Acceptance Corporation, and also signed the new contract with it to the Mercantile Acceptance Corporation.”

Prior to November 1, 1930, when the bill of sale, was executed to Mrs. Chiflakos, the defendant, Pioneer Credit Indemnity Company, procured a judgment in the justice’s court of Red Bluff township, Tehama ■ County, for the sum of $210.51, against both Norma J. Podva and her mother. On November 13th an execution was issued from the justice’s court in that suit and levied by the officer McCune upon the automobile. December 17th, the Mercantile Acceptance Corporation filed its verified third party claim to the machine, under the provisions of section 689 of the Code of Civil Procedure. No tender of the unpaid portion of the loan was made by the officer pursuant to section 689b of that code. The plaintiff Chavalis filed no third party claim in his own behalf.