Donald E. Freeberg, plaintiff below, appeals from a summary judgment in favor of defendants, James D. McClaugherty and Securities Investment Company of St. Louis. Primarily, the case concerns the application of Sections 33, 52 and 53 of the Certificate of Title Act, 3 Penal Cоde, Art. 1436-1, Vernon’s Tex. Penal Code.
The trial court granted a summary judgment in favor of defendant McClaugherty and denied plaintiff’s motion for severance. Later the court granted Investment Company’s motion for summary judgment, and the appeal is from a judgment which consolidated those two judgments. At the outset, we must discuss the showing required of a respondent in a summary judgment hearing. The judgment recites, and McClaugherty and Investment Company make frequent mention in their briefs, that Freeberg failed to file counter-affidavits to defendants’ motion for summary judgment.
Summary judgments аre not granted by default, but upon the movant’s discharge of his burden to show the absence of fact issues. If movant’s showing poses-only a question of law, there is no need to' file counter-affidavits. Couey v. Arrow Coach Lines, Tex.Civ.App.,
Donald E. Freeberg, late in 1955, was-about to be transferred for military service-to Germany. He owned a trailer house,, and his certificate of title recorded a lien. The lien had been paid and was released on the back of the certificate of title. Free-berg wanted to sell the house, so he contracted Donald L. Hamilton, the sales manager of Hilltop Trailer Sales, an assumed name of Alliance Finance Corporation. He delivered to Hilltop his certificate of title which showed he was the owner. He did not then transfer the certificаte and it has never been transferred. He also delivered to Hilltop a written contract which made Hilltop his agent to sell his trailer house for a commission of five per cent. The instrument “appoints the consignee his true and lawful attorney-in-fact for the limited рurpose of delivering the title of the said house trailer in accordance with the terms of this agreement.” It made the consignee *827 the judge of the good credit and business standing of the purchaser. It authorized Hilltop “to collect for and in behalf of the consignоr full payment for the house trailer so sold and to immediately pay to the consignor any amount collected. * * * ” That instrument empowered Hilltop to act •as agent to sell, to make a sale on credit, to transfer the title, and to collect for Free-berg. Freeberg also signed another power •of attorney to transfer a motor vehicle, but it was signed in blank. He delivered it to Hilltop.
Neither Freeberg nor his agent, Hilltop, has ever executed a transfer of the certificate of title to the trailer house, though it has been in Hilltop’s possession, or that of its assigns, since the day Freeberg delivered it to Hilltop in December, 1955. .Section 33 of the Certificate of Title Act says that no motor vehicle may be disposed of at subsequent sale unless the owner designated in the certificаte of title shall transfer the certificate of title. Section 52 says that it is unlawful to buy or acquire any title other than a lien without then and there demanding of the proposed seller the registration receipt and certificate of title. Section 53 declares that sales in violation of the Act shall be void and that no title shall pass unless the provisions of the Act have ¡been complied with. Though neither Free-berg nor his agent has done what the Act says is necessary, the judgment of the trial court is that Freeberg made a valid sale оf the trailer house, and that the purchaser, McClaugherty, acquired title.
There is no dispute in the fact that Hilltop had the power to act as agent for Free-berg. From the undisputed showing, how•ever, Hilltop did not act as agent for Free-berg, but acted solely for itself as though it were the owner. Freeberg was dealt out ■entirely. Fie started as sole owner, but at the end of the transaction he owned nothing and received nothing. The trial court has confused Hilltop as agent for Free-berg, with Hilltop as owner, and has concluded thаt because Hilltop had power to sell for Freeberg, it could therefore sell for itself. Hilltop’s sole interest in the transaction was a five per cent commission,
Hilltop on December 30, 1955, undertook to sell the Freeberg trailer house to James D. McClaugherty. McClaugherty, as a partial payment, traded in and delivered to Hilltop his 1951 Liberty trailer-house and transferred title to Hilltop. He executed a note payable to Hilltop in the amount of $5,850. He entered into a time purchase contract which showed that it wаs between him as purchaser and Hilltop, a dealer, as the seller. All of these documents showed that McClaugherty dealt with Hilltop as though Hilltop, itself, was the owner. The judgment recites that these documents were executed in favor of Hilltop, but not as agent for Frеeberg. The McClaugherty note was' immediately transferred to Alliance Finance Company, and later, on March 12, 1956, Securities Investment Company bought the note and lien from Alliance.
From the undisputed facts, Hilltop knew that Freeberg was the sole owner, and McClaughеrty, the purchaser, knew it too. The depositions in the record show that Hilltop told McClaugherty before the sale, that Hilltop did not own the trailer house but was acting as selling agent for Freeberg. Apart from this actual knowledge, the Certificate of Title Act puts such infоrmation easily within reach of a purchaser to determine who the true owner may be. The purpose of the Act is to manifest this fact.
The error in this case has arisen from a confusion of Hilltop as mere agent for Freeberg, with Hilltop the dealer. Though Hilltop had power to sell for Freeberg, the owner, it was not the owner. Pride v. Brandon, Tex.Civ.App.,
McClaugherty also contends that Free-berg clothed Hilltop with apparent authority, by placing the trailer in Hilltop’s hands. McClaugherty could hardly rely upon that when he was told and knew that the trailer belonged to Freeberg and that Hilltop was merely acting as sеlling agent. Instead of clothing Hilltop with appearances of ownership, it appears Freeberg withheld appearances by not assigning the certificate of title to Hilltop. Erwin v. Southwestern Inv. Co.,- supra. It may well be asked if this be a case where the purсhaser should be protected, then of what use is the Certificate of Title Act? This is precisely the kind of situation it was intended to thwart. Many vehicles are sold by agents in possession. Appellees propose two principles in this case, which, if they be valid, will entirely еmasculate the Act. One is that a seller, whose unassigned certificate of title shows he is the owner, will not be able to avail himself of the Act if his vehicle is converted or stolen by his own agent. The other is, that a seller’s delivery of possession to an agent for sale, without anything more, is such apparent ownership in the agent as will excuse the buyer from complying with the Act. The declared purpose of the Act is to defeat schemes to traffic in other person’s motor vehicles and one of those schemes is convеrsion by an agent of a principal’s vehicle. Section 1 of the Act declares that its purposes should be achieved by a liberal construction of its objectives.
McClaugherty seeks to excuse his purchase from the wrong person by the statement in severаl cases that a purchaser complies with the law by demanding a certificate, even though he does not immediately receive it. McKinney v. Croan,
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We turn now to the summary judgment in favor of Securities Investment Company. Most of what has already been said applies to it too. After Hilltop sold the trailer and took all evidences of indebtedness in its name, it then assigned to Alliance who sold the note and lien to Investment Company and received the cash. McClaugherty commenced making his purchase payments to Investment Company. At that time the trailer was sold, Hilltoр and Alliance had all the purchase money, and Freeberg had nothing. The sale was made on December 30, 1955, and Investment Company bought the note on March 12, 1956. At that time there was no new certificate for the trailer house which showed on its face the lien which it had bought. Section 32 of the Title Act authorizes the issuance of an “Original” certificate of title, and in case there is a lien, a “Duplicate Original.” The “Original”, by law, is sent to the lienholder. When, therefore, Investment Company bought the note and lien it knew that there was no record of the lien which met the requirements of the Certificate of Title Act. Giles v. Lehman, Tex.Civ.App.,
Appellees also contend that the trial court properly granted judgment because the court sustained its special exception that the action was barred by limitations. The record does not disclose whether the'court sustained the exception, but the action is not barred. The vehicle was delivered to McClaugherty on December 30, 1955. Freeberg, on December 5, 1957, sued both McClaugherty and Securities Investment Company for conversion, or to recover the property and the rental value. This action was clearly not barred. By amended petition, Freeberg sued alternatively for conversion and for the proceeds of the sale, if it be held that the sale was a valid one. He was in Germany in the military service, and first learned of the conversion in January, 1957. He filed the amended petition June 6, 1958. The alternative action was not barred by limitations. Barker v. Swenson,
The judgment is reversed and the cause remanded.
Notes
. The Act was sponsored by automobile finance companies and banks so such information could be disclosed to them through a central department. 3 Penal Code, pp. XIII, XIV, XVIII, XIX. Vernon’s Ann.Penal Code.