Sidney v. Wilson

Claim and delivery. Briefly stated, the facts are that plaintiff had entrusted the sum of six hundred dollars of her separate property to her husband, E.

Appellants specifically contend that there is no finding by the court with respect to the ultimate fact either of ownership or of right of possession by the plaintiff at the time the action was commenced; and it is admitted by respondent that in the absence of either of such findings, in substance or in effect, whether directly stated or to be inferred from the express findings of the court, a reversal of the judgment must follow. In connection with the fact . of plaintiff’s «ownership, or her right to possession, of the automobile at the time the action was commenced, the findings contain the following: “That the said sum of Six

It will thus be seen that there is no direct finding, either of ownership or of right of possession in plaintiff at the time the action was commenced—the only finding in regard to ownership being that the automobile was purchased on September 19, 1921, and that it remained in the custody of plaintiff until November 30, 1921, when it was taken from plaintiff by the sheriff under the writ of attachment. It sufficiently appears that plaintiff was in the actual physical possession of the automobile at the time it was so taken.

[1] It is the rule that where possible the findings of the court should receive a construction which will support the judgment rather than defeat it. It is said in the case of Breeze v. Brooks, 97 Cal. 77 [ 22 L. R. A. 257 , 31 Pac. 742 ], that: “The findings of the trial court are to receive such a construction as will uphold rather than defeat its judgment thereon, and whenever, from the facts found by it, other facts may be inferred which will support the judgment, such inference will be deemed to have been made by the trial court, and upon an appeal from that judgment, this court will not draw from those facts any inference of fact contrary to that which may have been drawn by the trial court for the purpose of rendering such judgment.” And see, also, Hihn v. Peck, 30 Cal. 286 ; McCarthy v. Brown, 113 Cal. 17 [ 45 Pac. 14 ]; Beggs v. Smith, 26 Cal. App. 532 [ 147 Pac. 585 ]; Paine v. San

Section 8 of the Motor Vehicle Act (Stats. 1917, p. 391, as amended, Stats. 1919, p. 199) sets forth the necessary procedure on a transfer of title of an automobile, and, among other things, provides that “until said transferee has received said certificate of registration and has written his name upon the face thereof in the blank space provided for said purpose by the department, delivery of said motor vehicle shall be deemed not to have been made and title thereto shall be deemed not to have passed and said intended transfer shall be deemed to be incomplete and not to be valid or effective for any purpose.” Because the record herein does not show that plaintiff was the registered owner of said automobile at the time the action was commenced, it is urged by appellants that under the provisions of said Motor Vehicle Act, as just quoted, plaintiff had not the right to possession of the automobile, and hence was not entitled to maintain an action in claim and delivery. [2] As set forth in the case of Beggs v. Smith, 26 Cal. App. 532 [ 147 Pac. 585 ], where many authorities are cited, mere possession of the subject matter of a claim and delivery action will not suffice. In order that an action of such character may be sustained, it is necessary not only that plaintiff show possession of the property, but as well, that he is entitled to such possession. [3] The facts of the instant case, as disclosed by the transcript, showing that plaintiff was the equitable owner of the car, coupled with her physical possession thereof at the time it was taken from her custody by defendant Shay, as sheriff, are a sufficient compliance with the rule requiring not merely possession, but a right to possession, in order that the action in claim and delivery may be maintained. In the case of Moody v. Goodwin, 53 Cal. App. 693 [ 200 Pac. 733 ], the legal principle is

With reference to the requirement of right of possession of the automobile at the time the action in claim and delivery was commenced by plaintiff, the findings show that plaintiff gave six hundred dollars of her separate property to her husband to purchase the automobile for her, as her separate property; that on September 19, 1921, plaintiff’s husband did purchase the automobile as requested, but registered it in his own name, of which fact plaintiff at the time was ignorant, and that she “did not know that her rights to the automobile were in any wise affected thereby”; that on October 28, 1921, plaintiff’s husband left the home of plaintiff and absconded from the state of California, leaving said automobile on the premises then and theretofore occupied by plaintiff and her said husband; that the automobile was kept at the home of plaintiff and her husband from the time it was purchased on September 19, 1921, until the thirtieth day of November, 1921, when defendant Shay, as sheriff, under a writ of attachment, took the automobile from plaintiff’s custody. According to the findings, the thirtieth day of November] 1921, is the last day that plaintiff had possession of the automobile. The action was tried on the allegations contained in an amended complaint and the answer thereto. The transcript of the record does not contain a copy of the original complaint; hence this court is unable to determine the exact date of the commencement of the action. However, the amended complaint contained an allegation “that before the commencement of this action plaintiff, on the fourteenth day of December, 1921, at the place aforesaid, demanded the possession of the said property of the defendants,” from which it may be inferred that the action was not commenced before December 14, 1921. Allowing as a correct conclusion that the findings show that plaintiff was entitled to possession

In the ease last cited, in referring to a line of cases holding that either ownership or right of possession must be alleged as of the date of the commencement of the action, it is said:

“The complaint, it is contended, fails to allege ownership or right of possession at the time of the commencement of the action, and hence, under the decisions in this

state, is insufficient (citing cases). In the cases cited, the only allegations of the complaint were, in each case, that at a day named prior to the filing of the complaint, the plaintiff was the owner and entitled to the possession of the property sued for, and that the defendant now wrongfully detains the same, etc. In this case the complaint alleged not only that on the day named the plaintiff was the owner and entitled to the possession of the property, but also that he was in possession of it, and that the defendants, on that day, without the plaintiff’s consent, and against his will, wrongfully and unlawfully and by force came into possession of said personal property, and, in effect, that it was thus taken from his possession. The difference is, that, in the cases cited, no cause of action is alleged as existing either at the time of the commencement of the suit or at any other time. But in the case at bar a complete cause of action is alleged as arising on the day named; and it may be contended that the obligation of restoration having been created by the wrongful act of the defendant, it continues—with the action founded on it—until it is affirmatively shown to have been extinguished.”

The allegations of the amended complaint herein with reference to the ownership and possession of the automobile are that “since the date of the purchase of the said automobile, to wit: September 19, 1921, plaintiff was, continued to be and now is the owner of the said automobile; that on November 30, 1921, plaintiff was in the exclusive possession of the said automobile, has ever since been entitled to the exclusive possession of the same and is now entitled to the exclusive possession thereof. ” [4] The allegations of the amended complaint are not criticised; but it is a rule (with but few exceptions, none of which is applicable here) that the findings must cover the material issues. The right of possession of plaintiff in the automobile at the time of the commencement of the action was a material issue upon which there should have been a finding by the court. In the case of Cooke v. Aguirre, 86 Cal. 479 [ 25 Pac. 5 ], it is said :

“The questions whether the plaintiff was entitled to the possession of the property, and whether he was damaged by the taking, were put in issue by the pleadings. Both of these were material issues. One of them, at least, must

Such ruling would seem to settle the question here involved were it not for the intimation contained in the case of Harris v. Smith, 132 Cal. 316 [ 64 Pac. 409 ], to which attention has been heretofore directed, and which is to the effect that where right of possession is shown in the plaintiff on a certain day and on which day the plaintiff was wrongfully dispossessed by the defendant, a cause of action is stated “arising on the day named, which continues until it is affirmatively shown to have been extinguished.”

In the instant case no question arises as to the sufficiency of the allegations of the complaint. The findings, after showing plaintiff’s equitable ownership and her actual physical possession of the auto, are:

“That the said automobile was taken out of her custody on the 30th day of November, 1921, plaintiff’s husband having deserted plaintiff on or about October 28, 1921, and absconded from the State of California, by defendant W. A. Shay, as sheriff, who acted at the instance and request of defendant R. B. Wilson, and that such taking of the said automobile from the custody of plaintiff was wrongful and without right.”

[5] Following the rule, as laid down in Harris v. Smith, supra, it would, therefore, appear that the findings with respect to plaintiff’s right of possession of the automobile support the judgment.

Appellants also urge the defense of estoppel. The court found that defendant Wilson relied upon the appearance of ownership of the automobile in plaintiff’s said husband, which was created by virtue of the registration of the automobile and the registration certificate in the name of plaintiff’s husband—(which registration certificate was exhibited to defendant Wilson) coupled with the additional fact that plaintiff’s husband apparently had the use and control of the automobile—and that in consequence thereof defendant Wilson sold the diamond to plaintiff’s husband and extended credit to him without any information or knowledge

[6] It is a maxim of jurisprudence that if one of two innocent persons must necessarily be damaged because of the act of some third person, if it also appear that one of such innocent persons was blamable in that he placed the power in the hands of the third person to commit the wrong through which such injury was suffered, such innocent person must bear the loss. (See. 3543, Civ. Code.) [7] The facts of this case as heretofore outlined clearly present a basis for the application of the rule announced in the case of McNeil v. Tenth National Bank, 46 N. Y. 325 [ 7 Am. Rep. 341 ], that “where the true owner holds out another, or allows him to appear, as the owner of, or as having full power of disposition over the property, and innocent third parties are thus led into dealing with such apparent owner, they will be protected. Their rights in such cases do not depend upon the actual title or authority of the party with whom they deal directly, but are derived from the act of the real owner, which precludes him from disputing, as against them, the existence of the title or power which, through negligence or mistaken confidence, he caused or allowed to appear to be vested in the party making the conveyance.” In volume 10, page 641, of California Jurisprudence, the foregoing rule is restated and accompanied by a large list of California cases affirming the doctrine. That the doctrine of estoppel may be invoked where a wife knowingly permits her husband to deal with her personal property as his own and will prevent her from asserting her ownership therein, as against persons who have extended credit to her husband in reliance upon his apparent ownership of the property, see 21 Corpus Juris, 1179, where, in support of the rule, the following cases, among others, are cited: Norris v. McCanna, 29 Fed. 757 ; Locklin v. Davis, 71 Vt. 321 [ 45 Atl. 224 ]; Boise Butcher Co. v. Anixdale, 26 Idaho, 480 [ 144 Pac. 337 ];

It follows that the judgment should be reversed. It is so ordered. It is further ordered that on the findings the superior court order judgment to be entered in favor of defendants.

Conrey, P. J., and Curtis, J., concurred.