Depuy v. Shay

BARNARD, P. J.

The plaintiff and her husband, C. P. DePuy, on December 30, 1925, purchased an Overland automobile under a contract which reserved title in the vendor until fully paid for, and which was signed by the plaintiff and her husband as purchasers. The purchase price was fully paid on February 13, 1926, and apparently the necessary papers were signed for a transfer of ownership, for the court found, and the finding is not attacked, “that a new pink certificate of ownership was issued on the first day of March, 1926, by the Motor Vehicle Division of the State of California, showing C. F. DePuy to be the legal and registered owner of said automobile, and by said Motor Vehicle Department mailed to said C. F. DePuy on or about March 1, 1926”. It appears that this pink certificate, with the white certificate of registration, was mailed at Sacramento on March 4, 1926, addressed to the plaintiff’s husband at San Bernardino, and while there is some evidence that it was received on .March 9, 1926, there is other evidence indicating that it was received a few days earlier. On March 9, 1926, W. A. Shay as sheriff of the county of San Bernardino, seized the automobile under a writ of execution issued against the property of the plaintiff’s husband, and later sold the same. This is an action for conversion brought by the plaintiff against the defendant sheriff, his executrix having been substituted in his stead

[478]

after his death. The trial court entered a judgment in favor of the defendant, and the plaintiff has appealed.

This being an action for conversion, the burden rested upon the appellant to affirmatively prove either ownership and the right of possession or actual possession of the automobile in question at the time • of its alleged conversion

(General Motors A. Corp.

v.

Dallas,

198 Cal. 365 [245 Pac. 184]). The appellant concedes that she is unable to show title by virtue of a certificate of ownership, as provided for in the California Vehicle Act, and that the automobile was registered in the name of her husband as legal owner. She contends, however, that all of the evidence shows not only that she was the equitable owner of the car with the right of possession, but that she was in the actual possession thereof, and that the court’s findings to the contrary are without evidentiary support. The main questions presented are whether the findings that appellant’s husband was the owner of the car and that he was in possession thereof, are supported by the evidence. Under well-settled principles these are questions of fact, and if the record contains any evidence to support such findings, they cannot be disturbed on appeal. The evidence in regard to ownership and possession is so closely related that we will consider both questions together.