Motor Acceptance Co., Inc. v. Finn

SPENCE, J.

This action for conversion was brought against the defendant sheriff for the alleged wrongful sale upon execution of an automobile. From a judgment in favor of defendant plaintiff appeals.

The cause was tried upon an agreed statement of facts. It appears that an attachment was levied by the defendant sheriff upon said automobile in an action brought by the Western Bond and Mortgage Company against John McGriff. In that action plaintiff herein duly presented to defendant herein its third party claim based upon an assignment of a chattel mortgage upon said automobile. The attaching creditor thereupon presented to the defendant its verified statement and bond under section 2969 of the Civil Code claiming that said chattel mortgage was void. Defendant subsequently proceeded with the sale upon execution.

The sole question presented upon this appeal involves a determination of the relative rights of the Western Bond and Mortgage Company as attaching creditor and the plaintiff herein as the assignee of the chattel mortgage. We shall therefore proceed to a consideration of the admitted facts concerning said chattel mortgage.

On June 2, 1926, at Canon City in the state of Colorado, said John McGriff executed a promissory note for $876 and the chattel mortgage covering the automobile in question to the “Rainbow Route Garage”. Said John McGriff signed his own name as mortgagor and the name “Rainbow Route Garage, By John McGriff” as the mortgagee. The parties have stipulated that the mortgagor and mortgagee “was at all times one and the same person”. On said June 2, 1926, the note and chattel mortgage were assigned by said John McGriff to plaintiff herein in consideration of the payment by plaintiff to said John McGriff of the sum of $876. The

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mortgage was duly filed in the office of the county clerk and recorder of Fremont County, Colorado, but the assignment was not filed or recorded. Neither the chattel mortgage nor the assignment was ever recorded in California. Shortly after the execution of these instruments said John McGriff, without the knowledge or consent of plaintiff, drove the automobile to California. On or about July 2, 1926, plaintiff learned that the automobile had been taken out of the state of Colorado, but was unable to locate it until after the attachment had been levied thereon in said month of July, 1926. The trial court entered its judgment in favor of defendant upon the agreed statement of facts as briefly outlined above and its judgment rests upon the theory that the rights of the attaching creditor were superior to those of plaintiff as assignee of said chattel mortgage.