203 P. 1038 | Cal. Ct. App. | 1921
The action was brought to recover possession of an automobile seized by the sheriff of Sacramento County under a writ of execution issued against Joseph Herspring upon a judgment in favor of California Pear Growers' Association. Prior to August 19, 1919, Joseph Herspring was doing business under the name of Joseph Herspring and Company. On that day he organized a corporation under the same name, composed of himself, his wife, and his brother, which continued the same business. On August 23, 1919, he executed a bill of sale purporting *621 to transfer to plaintiff the title to said automobile. At that time said association had a claim against Herspring for goods sold and delivered which was subsequently reduced to judgment, upon which said execution was issued.
At the trial these facts were stipulated: "At the time of the execution of the bill of sale Joseph Herspring as an individual was the owner and in possession of the Paige car; that at that time the car was kept by Joseph Herspring in his garage and that his garage was located at Joseph Herspring's residence; that ever since that time the car has been kept in Joseph Herspring's garage by him, and that since the time of the transfer he has continued to keep it in the same garage, and that since the time of the transfer he continued to drive it and use it for his own personal use; that since the time of the transfer he was the only one who drove the car; that at the time of the transfer — no transfer was made in the office of the State Automobile Department — there was no registration of any automobile under the name of Joseph Herspring Company; that at no time during the year 1919 was there any transfer made on the records of the Motor Vehicle Department nor was the transfer slip which is provided by the Motor Vehicle Act filled out, and in the year 1920 the registered owner of the car was Joseph Herspring."
[1] There is a controversy between the parties as to certain other facts, but the foregoing is sufficient to show that the case falls clearly within the provisions of section
Some contention is made by appellant that respondent had notice of the sale and therefore the purpose of said statute was accomplished. The only evidence as to that is found in the transcript as follows:
"Mr. Schwab: Mr. Sapiro, I want to ask you if it is not a fact that you have known that the corporation was in existence, known that Joseph Herspring individually transferred to the corporation all this property at the time of the meeting in San Francisco, at which you were not present, at which Mr. Downey was present —
"Mr. Sapiro: All I know —
"Mr. Schwab: That the Pear Growers' Association had known of this situation all during this time.
"Mr. Sapiro: I cannot say it is a fact.
"Mr. Schwab: I will have to produce Mr. Downey then.
"Mr. Schwab: Q. Is not that the fact, Mr. Herspring? A. That is a fact."
It is apparent that Mr. Herspring's statement is a mere conclusion, but, at any rate, the matter is entirely immaterial. *624 [2] The purpose of the statute and the terms of the statute are two distinct considerations. The main reason for requiring an immediate delivery and a continuous change of possession may be to give notice to creditors, but the fact that one who is a creditor at the time of the attempted transfer may otherwise have notice of such transfer does not make it valid as to him when there is no such delivery and change of possession. In the case of one becoming a creditor after such notice the consideration might have some bearing upon the question of estoppel or of good faith, but it is of no significance herein.
Respondent claims that the judgment should be affirmed upon two other grounds, but we see no necessity for discussing them.
The judgment is affirmed.
Hart, J., and Finch, P. J., concurred.