*1 Warrant, regular on The Governor’s was a
face, in evidence as was introduced
copy of Alabama indictment. appellant’s
There is no merit in conten- requisi- necessary
tion that it was that the upon
tion which the Texas is- Governor of
sued the extradition warrant introduced. Parte,
Foskett, Tex.Cr.App., Ex is affirmed. ALEXANDER,
A. C. Appellant,
LING-TEMCO-VOUGHT, INC., Appellee.
No. 7710. Appeals
Court of Civil of Texas.
Texarkana.
May 24, 1966.
Rehearing May 24, 1966. Denied *2 Trailer
executed delivered M. sum date, $4,131.00 days payable 30 from option. The Condi- demand at the holder’s re- express terms tional title to in the manufacturer the tained *3 purchase price evi- house trailer until the Davis, Irion, Don Cain, W. Cocke & Ma- paid. promissory note was Dallas, denced gee, appellant. a collateral appears There have been Hoffman, Harold Wynne, & Tins- Jaffe time and parol at the same agreement made ley, Dallas, appellee. the Con- part a the same transaction as In- to. ditional referred Sales Contract CHADICK, Chief Justice. Bill a parol (1) are agreement in the volved State- litigation Manufacturer’s (2) This Sale and a was initiated appellant, Vehicle, here- A. C. Motor Alexander, Origin of a ment of plaintiff a in a declara- tory Cer- a referred to as Manufacturer’s after action to determine owner- ship trans- completion of the sales a At trailer; house tificate. ap- cross-action pellee, Inc., System, intentionally with- action M. Ling-Temco-Vought, Inc., (succes- sor in delivery of these two instruments. interest held System, to M. Inc., as a concerning parties result of a agreement The of the corporate merger) sued Alex- instruments, ander according and the uncon- Pioneer Company Finance to es- appellee, quiet tablish and filed legal troverted affidavit equitable and to the retain trailer, would possession that the manufacturers thereof, was Man- alternatively, possession of the Bill Sale and establish a first lien there- on securing until Trail- a Certificate promissory ufacturer’s note for its Inc., price. Sales, payment chase made full Summary er judgment was ren- price. dered $4,131.00purchase vesting legal trailer’s equitable title in Ling-Temco-Vought, Inc., etc. Alexander Stevens Trailer trail- perfected alone has appeal. an judg- The Leesville, er to Kenneth E. Smith at Louisi- ment of the court trial is modified af- ana, January 23, on 1962. This sale trans- firmed. trade-in, pay- action embraced a a cash Inc., M. System, ment, manufactured the sub- payments. and a note for deferred ject Ranchero trailer, house serial RN 55- a mortgage Stevens took se- 27, in Texarkana, Texas, its plant and at curing the note for the from Smith credit place such November sold and part purchase price assigned of the possession delivered of the trailer to Ste- note and Pioneer Finance mortgage to Com- Sales, vens Trailer Inc., a pany. dealer whose July appel- Thereafter on Atlanta, of business was located in purchased lant Alexander the trailer from Georgia. transaction, sales Smith, in the paying equity for Smith’s $100.00 entirely instruments, evidenced written payment and assumed unpaid of an bal- by (1) shown a Conditional Sales $6,890.17 payable ance of then to Pioneer 16, 1961, dated November and de- Company. executed Finance Prior to suit parties, as livered to both it wherein monthly Alexander made payments agreed “contract, that the given company $1,046.76. the note totaling finance At the therewith, connection purchase and the formalities of time of Alexander’s title investi- * * * gation execution a contract disclosed him the existence pursuant Company’s mortgage construed to the laws” of Pioneer Finance pro- secured; State of where instrument indebtedness his affi- located; (2) says liens, vided the trailer would be davit he found “no other claims promissory rights outstanding anyone note dated other than November owner, certificate. on the manufacturer’s Motor E. Alexander Kenneth Smith”. City (1943), cer- Knox Tex. application for a Louisiana title Inv. Co. v. made page securing it. 486. Motor Inv. but unsuccessful tificate City Tex. Ling-Temco-Vought Co. v. of Hamlin He was first advised Inc., developed re- interest 278. facts some claim or asserted November, retained flect that trailer in October or Cer- the Manufacturer’s Bill Sale and rights obligations parties anyone exhibiting them tificate without will be though reviewed and ascertained as handling company personnel such outside the entire transaction occurred the State until suit from the time sale matters laws; effect, subject Texas made a lien was ever notation of filed. No any, if of Georgia or Louisiana law will Certificate. upon the Manufacturer’s Terms, then be considered. “first sale”, vehicle”, “subsequent sale”, "motor *4 preservation priority The and of etc., Act, in defined Certificate of Title the governed by is the liens on motor vehicles 1436-1, seq., Art. 1 et Ann.Tex- Vernon’s provi of Act. The Act’s Certificate Title P.C., as are in of their stat- used the sense provisions superseded inconsistent of sions utory opinion. throughout definition this registration in mortgage laws the chattel Ameri Co.v. this Commercial Credit field. The Certificate of Title is a Act 155 S.W. Mfg. (Tex.Civ.App.), can having special statute application motor to Fretz, ref.; of Atlanta v. 2d Bank writ vehicles, which term includes house trail “Automo Tex. ;ers Sec. 41 of the Act declares: lien “No biles”, While the Sec. 71. 7 T.J.2d any shall be valid on motor vehicle which authoritatively determined cases cited last subject sale, is hereafter the of a first title certificates of the Act’s where primacy against be enforceable any such motor ve re with concerned, are the same conclusion hicle unless is importer’s there noted on the not so is spect to certificates manufacturer’s name, date, manufacturer’s certificate the settled, little can be pointedly but there mortgagees rights address the whose from language emphasized of it. doubt arise out of or are to incident such first supra City, v. Knox Motor Investment Co. any sale reason of the execution of writ predominance clearly recognizes a similar ten instrument the transferee.” certificates, to-wit: in manufacturer’s Conditional Contract above mentioned provides that Section “It is true a lien. Art. mortgage created chattel any on motor valid that no lien shall be Ann.Tex.Civ.St., part says: Vernon’s the man- is on unless there noted vehicle to or “All reservations of the title certain evidence certificate chattels, ufacturer’s security purchase the as lien, and, by a such thereof, of the existence of money to be chattel be held * * charges least, implication at s^^chstatute System, Inc.’s mortgages a lien purchasers with notice Trailers trailer house to Stevens sale of the if For the is so noted on provisions Inc., sale, lien first ais certificate. purchasers, necessary it is clearly applicable reason Act are 41 of the of Sec. against protect the order themselves to created The lien transfer. the shown outstanding liens was valid Conditional Sales certifi- buy- cate, thereof to obtain such by notation subject preservation before certificate gages, provides generally article provides that then that also The article to contravene possession be construed delivered shall not of a chattel is when ap- law; tenant however lien created landlord and vendee provisions plications house of these void shall be title reservation superseded by purchasers, the Cer- has trailers been bona fide as to creditors writing Title Act as shown hereafter. tificate of in be such reservation unless required registered mort- chattel as vehicle; mere Certificate ing the but failure ufacturer’s was delivered it, upon a first a lien to obtain such certificate on a dealer without a notation of sale, particu- permitted ex- sale does not invalidate the the dealer was and did case, where, purchaser, City. evidence A larly in this hibit it to Knox as fraudulently duplicate certifi- lien had been noted obtained Manufac- sale Knox (Emphasis turer’s issued after cate at the time sale.” Certificate securing in- City, a of a lien bore notation added). City Knox contracted after debtedness Hamlin, City See Inv. also Motor Co. v. purchased deci- the vehicle. These facts harmony supra. This construction sively present case. distinguish from that purposes with of the Act and necessari- ly will this case. be followed Appellant Alexander claims title to purchaser house an upon value. This having a lender claim is based ex physical contention possession gov clusive that Georgia law a certificate superior erns equities proposition to the transaction. The of subse quent not purchasers holders, sustained although or lien the record. Earlier it was lien is not noted mentioned on the Conditional Sales Con certificate as tract Act, directed in the between M. Certificate Title Trailer subsequent provided sale transaction is the in influenced strument was to of the lien omission deemed a con *5 tract notation from the in conformity certificate. construed Associates with the laws City Investment Co. of that provision v. National of state. Such Bank is an effort (Tex.Civ.App. 661, impart to 1950), Waco the agreement 231 to S.W.2d the at writ; no tributes First State and effect of a Corpus Bank contract Chris made and ti 1958), Georgia. v. H. Austin executed in the (Tex. Civ.App. Motors State The evi 315 ref.; dence is S.W.2d wr. uncontradicted that Ballard v. Asso ciates house was 1963), Investment Co. located in the (Tex.Civ.App. Texas at time the ref., 368 contract e.; Also, S.W.2d wr. n. r. consummated in South Texas. western is Investment Co. Nat. shown that the trailer was v. American at Lees- ville, Louisiana, Sales, Bank of Amarillo 374 (Tex.Civ.App.1963), Stevens Trailer Inc., e.; ref., Smith, S.W.2d wr. sold it to Kenneth n. r. Clade Na E. v. Smith City tional resold to Alexander. no Bank of There is evidence (Tex.Civ.App. Waco 1950), ref., the trailer house reached State of wr. n. the Geor r. e. facts of this case do not gia show that M. after removal from Texas. The situa System Inc.’s presented failure to analogous note its lien the tion the record manufacturer’s certificate existing or the to that mortgage omission when a is execut played the notation any part'in, jurisdiction property ed in an influ one enced or bearing upon subsequent “Re-statement, had a jurisdiction. the other Conflict sales Laws,” espouses application transactions between Trailer Stevens 265 § Inc., instances, and Smith following or to to- Smith’s sale rule Alexander. The reasoning validity mortgage the certifi “The effect of a wit: cate of title cases cited leads to a similar of a chattel are determined law of conclusion that the Conditional Sales Con where the chattel is at the time state tract lien should regarded not be also as waived when the executed.” See or forfeited omission Mortgages”, of a notation there “Chattel § T.J.2d 21, 17, of on the manufacturer’s which Mort certificate Chattel § Am.J.2d C.J.S. System, Inc., possession gages 14, p. retained at 606. In this instance State all jurisdictional relevant times Georgia never exhibited has not had actual Smith In or Alexander. Motor Investment contact with the or or the contract supra, City, original Co. v. Man- parties Knox litigation; this absence strengthens Sales, of such contacts the reason for Stevens Trailer Inc.’s address in At lanta, concluding governs. Georgia, the law of the situs and not removed therefrom It govern follows law does not written without the consent of M. transaction, and such law can have Inc. It also authorized Trailer Stevens Sales, standing Inc., an in- bearing display on Alexander’s house trailer at “ * * * business, con- purchaser for value. Further nocent for resale question only, provided sideration of the for cash that when a sale sale, complications proceeds incident chaser and the made all of said wheth kind, Louisiana shall not be being trailer State er cash or in which next be to Alexander will indi when it was sold the deferred balance above less than cated, buyer in by the noticed. be received shall assigns or trust for seller requested trial court not buyer immediately transferred judicial to take notice of the law Lou seller, construes assigns.” Alexander isiana, and such pled law was not nor for quoted permission Stevens language as proved, presumed must be so it that Lou Sales, Trailer to transfer the trailer isiana law is identical with Texas law hav E. buyer, to a in this instance to Kenneth ing application v. case. Milner Smith, and to and clear of the lien sub free (Tex.Civ. Schaefer App.1948), 211 S.W.2d proceeds of that transaction stitute ref.; City Kansas Title Ins. wr. provision not vehicle. Whether (Tex.Civ.App.1954), 265 v. S.W.2d Butler given Alexander’s construction should be ref., e.; Treend r. wr. n. Sanders not there was need not be decided because wr. (Tex.Civ.App.1954), with the condition compliance a substantial ref., e.; (Tex.Sup. Ogletree v. Crates n. r. up. partly set The trailer was . disposi Ct.1963), 363 Since S.W.2d 431 cash, trade, partly for deferred partly it, require appeal tion of the does not Atlanta, Georgia, payments but in sake, brevity’s trailer the sale of the Leesville, The sale Louisiana. Stevens Sales, Inc., to Trailer violated Trailer to Smith Leesville, Louisiana, disregarded will be permission. The prerequisite condition *6 the innocent the further consideration of waiver of do not show a circumstances that have purchaser question. The facts Bank v. Conti State Highland lien. Park trail of the (Tex.Civ. that the sale been recited show Bank of Fort Worth nental Nat. not, could ref., did by to Alexander e. 304, er n. r. wr. App.1957), 300 S.W.2d not, requirements of comply with 27, 8, Act, Alexander also by op asserts title of Title
Texas Certificate §§ year Alex eration of the two 33, shows statute of limita This evidence 51 and 52.2 tions, Ling-Temco-Vought, rendered Art. 5526. in a sale bought the trailer ander not sued to title an inno establish its or an enforceable Act. He is void 53§ debt, securing Texas law. lien a both applicable evidenced in purchaser under cent 260, 249 writing. in suit insti Tex. struments Loky (1952), 151 Guinn v. 393, maturity “Automobiles”, years tuted than four after the 7 less S.W.2d T.J.2d year date of The four the indebtedness. §70. 5527, limitation, applies Art. statute pur with the innocent to establish a lien Associated action. suit (Tex.Civ. is Alexander’s phase chaser case is not barred. v. Graham Leto dism.; 1031, claim Conditional Sales wr. App.1937), that 103 S.W.2d pro agreement Liquid Logan v. was waived. The of Texas Contract Carbonic Co. 632, be at no (Tex.Civ.App. 1935), the trailer would located 79 vided that S.W.2d lengthening opinion may be this refer- other Act which 2. To sections of the avoid 1436-1, opinion. Art. made to Vernon’s in is mentioned ence text these Penal Code
925 writ; Jolly Fidelity Union Trust No case similar to this under has review (Tex.Com.App.1928), found, general Tex. S.W. been but the rule had has application 2d A sub mortgagee may 539. follow and Texas in situa courts other ject mortgaged property, the hands of tions. See Federal Electric Co. v. Johnson it, purposes one has converted (Tex.Civ.App.1945), who wr. mortgage any dism.; time before the secured (Tex.Civ.App. Moerbe v. Beckmann “Chat indebtedness is barred limitation. 1939), dism., judg. cor. wr. tel Mortgages”, 15 There is no evidence of on Alex action Am.Jur.2d ander’s part appellee that visited notice Appellant appellee’s counters the that appellant appellee’s lien denying rights under the mortgage argu with the claiming or the trailer house adverse ment that he position “the of a con ly appellee’s appellant’s lien. The con verter, albeit one whose not good faith is tentions are overruled. challenged;” may insists he be sued, all, conversion, if at a tort barred Pursuant to the conclusions reached above year the two statute of limitation. He the judgment of applies the trial as it court relies on year Art. the two statute of between appellee will against limitation as a bar to action modified to appellee the end that the is ad- him, and cites Port Milling Arthur Rice judged to be the owner and holder a valid Company v. Beaumont Rice Mills upon first lien payment the trailer securing Tex. support S.W. of a unpaid matured and promissory note argument. authority his He cites no principal $4,131.00, amount of with appellee’s limits to a suit for redress no bar foreclosure or to the exercise instrument, conversion. of all rights upon byit conferred the Con- Contract, placed posses Conditional Sales therein, ditional or inherent gave mortgagee sion in mortgagor, etc.; costs, for all as modified the present right possession, right is affirmed. all, pay maturing, upon if at default The opinion filed herein on March mortgagor
ment. The not be held to can 1966,is pos withdrawn and the filed being foregoing know claimed and appellant’s lieu it in pos passing upon hostility first sessed in to the lien unless rehearing. motion claim Such motion is de- bring sessor acts to his adverse nied. hold possession to the of the lien attention use does show
er. The evidence years ownership Alexander two claim of FANNING, J., concurs. that was inconsistent more before suit *7 timely or that was appellee’s lien with DISSENT general notice. The appellee’s to brought Posses Adverse in 2 rule is stated C.J.S. DAVIS, Justice. 241, is said: p. 886, where it sion § chattel, con- “Possession of a with the I dissent. by The house trailer sold was permission owner, sent or of the however System, Inc., “M.” Sales, to Stevens Trailer long-continued, by ad- give Stevens, will not hereinafter referred to as on possession; posses- verse the 16, 1961, where apparently November was de- permissive inception, its sion is in its Road, Atlanta, livered to 2114 Piedmont adverse, so changed character will be to Georgia. The house trailer sold was then statutory permit running January 23, 1961, as the of the on by to Stevens Kenneth period only possessor the evinces when E. Smith. Smith executed a Chattel Mort- ownership by tangible gage claim of act some in Company favor of Pioneer Finance hostility rights January 26, to the the real own- of 1962. Pioneer Finance Com- er.” pany paid appellee Stevens. The is not men- 926 Appellant Appellant
tioned
this transaction.
filed a motion that
the trial
July
judicial
chased the trailer house on
court take
notice
the
of
laws
appellee
was State of Georgia.
granted.
from Kenneth E. Smith.
motion
was
transaction.
not mentioned
the
the
On
date of
Bill of Sale and Con-
Note,
ditional Sales Contract and
Novem-
part,
provides, in
The Contract of Sale
16, 1961,Georgia
ber
did not have in effect
as follows:
68-4A,
a Certificate of Title
Art.
Act.
Code
prop-
Buyer
“3.
shall not remove said
Georgia,
of
July
took
effect
Statu-
erty
place
the
business herein-
from
of
tory
applies
and case law
the
transactions
con-
below described without
written
appellee’s predecessor.
between Stevens and
assigns,
use
sent
nor
Seller or
law,
Under the
must
such contracts
sell,
any
purpose, nor
same for
unlawful
duly
be
recorded. The Bill of Sale and
in-
permit any liens to be
encumber nor
re-
Conditional Sales Contract was nowhere
same, except
herein-
as
against
curred
corded, and the Conditional Sales Contract
said
may display
provided: Buyer
after
provided for the resale of the house trailer.
herein-
property
place
of business
allegation
proof
There is no
or
that the con-
only,
for cash
below
resale
described for
in Georgia,
anywhere
tract was recorded
or
made,
provided
all
that when a sale
else. There was a conversion of the house
proceeds
in cash
of said sale whether
trailer
by
was sold
Stevens to
than
kind,
not be less
which shall
Smith, and
was
there
a further conversion
indicated,
the deferred
above
balance
appellant.
when it
was
Smith
Buyer
trust
shall
received
be
More
years
elapsed
than
two
time
after
im-
be
assigns
and shall
for the Seller
sale of the house trailer to
Smith
Buyer
mediately transferred
appellant,
only
Smith to
recourse
form
proceeds in
assigns.
Seller or
Said
appellee
for damages
has is a suit
be
shall
Buyer
on resale
received
against
I
law
Stevens.
think the
of Geor-
property
and shall
Seller
gia
applicable.
Peoples Loan
Finance
&
any purpose.
Buyer
be
used
Corporation
(1959),
Rome
v. McBurnette
assigns may ex-
At
time Seller or
32;
Ga.App.
100
110
47
S.E.2d
Am.J.
sold,
personal property herein
amine the
863;
Inc.
Company,
Investment
Jewelers
and records
together
the books
with
Addressing
(1957),
v. Elliott
Machine Co.
ob-
to the above
Buyer with reference
548;
Ga.App.
Mize v.
97 S.E.2d
ligation.
(1949),
Paschal
Ga.
S.E.2d
connection
the state
of execution thereof
business
low set
cated,
“
“8.
and construed
[*]
acknowledgment
which
This
[*]
.
[*]
*8
forth.”
where
therewith,
the dealer
contract,
pursuant
including
shall
only
(Buyer) hereinbe-
the formalities
note
be
shall
witnessing
a contract
given
laws
be
lo-
Lewis
applicable.
purchasers for value. There was no
fraud.
body
Garrison No. 7742. 914; (Tex.Civ.App. Ellis v. Heidrick S.W. Meyer W.M.), W.R. Appeals Court of Civil of Texas. Drug Company Fry Tex. Bros. Texarkana. Civ.App., 48 N.W.H. S.W. Aug. Smith, the lien without notice
whatever, purchased the trailer house for price $6,191.34. paid selling
a cash He cash, allowance and a trade-in
$953.34 He executed a chattel $585.00. paid off installments of monthly each, $7,326.32. a total of
$87.23 equity
sold appellant his for $100.00 assumption on the of the balance due appellant required pay
note. If
$4,131.00 appellee, that is claimed
plus $7,326.32 that is to Pioneer due Company, degrading.
Finance that would be for the here blame situation that exists neg- due action of Stevens and the
ligence appellee its
predecessor in title. study provisions
As I of the contract ap-
it seems to me that the lien claimed
pellee property was was released money Stevens to Smith. Stevens, trade, paid
was along with Company Smith and Pioneer Finance
became the appellee and its
predecessor in ac- title. The sale made money
cording to the contract and the Stevens,
paid to appellee “IN If TRUST”. predecessors in title had been dili-
gent they have collected from Stevens. could
I am a strong principle of: believer morally is, right ought
“That which is and of be, ap- principles law.” If these are
plied contract, action of
parties, is an appellee pred-
chaser as far as the and its
ecessors in title are concerned. point
I appellant’s would sustain the
error and would reverse render appellant. in favor