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WEIGELT v. FACTORS CREDIT CORP (12/29/53)

: December 29, 1953.

WEIGELT
v.
FACTORS CREDIT CORP



COUNSEL

Edward F. Hitchcock, Media, Otto Kraus, Jr., Philadelphia, for appellant.

Charles H. Heidmann, Media, Irving W. Singer, Philadelphia, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Ross, Gunther, and Wright, JJ.

Author: Reno

[ 174 Pa. Super. Page 401]

RENO, Judge.

This is an appeal by the execution-creditor in a judgment obtained by foreclosure of a chattel mortgage on a used motor vehicle from the award of the proceeds of the sale of said vehicle to the claimant-appellee in interpleader.

On or about September 1, 1952, Fred Mohr, the owner of a 1949 Ford convertible coupe, left his automobile with Howard McKeever, trading as Seaboard Motors, who was to put it on display for sale at his place of business in Collingdale, Delaware County, where he sold used automobiles. On September 20, 1952, the claimant-appellee purchased the automobile from McKeever. He received a bill of sale, temporary registration certificate, receipts for payment of the purchase price and for the cost of tags and title transfer, and obtained possession of the automobile. McKeever, after paying Mohr, obtained the signature of Mohr to the title certificate in blank and inserted his name in the assignment of the title certificate. On September 22, 1952 a chattel mortgage was executed and delivered by McKeever to the appellant. This mortgage was given to secure a judgment note of even date for $850, with interest, representing a loan in that amount made to McKeever by appellant. No attempt to inspect the automobile or ascertain if McKeever had possession of it was made by appellant at the time the

[ 174 Pa. Super. Page 402]

    loan was made. The automobile was in the possession of the claimant-appellee on the date the loan was granted and the chattel mortgage executed and delivered by McKeever to appellant. On the back of the title certificate, Seaboard Motors, by Howard McKeever, made application for certificate of title in his trade name, requesting that a lien of $850 in favor of Factors Credit Corporation, appellant, be noted thereon. Subsequently, appellant received a new certificate of title in the name of Seaboard Motors with the encumbrance in favor of appellant in the sum of $850 noted thereon. Default having been made in payment, judgment was confessed against McKeever by appellant and execution was issued against the motor vehicle. Claimant-appellee filed his property claim and, by agreement, the sheriff sold the automobile and the sale price of $675 was paid into court. By decree of the court below the proceeds were awarded to the claimant-appellee, and this appeal followed.

It is contended that possession of a title certificate to a motor vehicle with mortgage lien endorsed thereon entitles appellant to the proceeds of the sheriff's sale as against the claim of the appellee, a bona fide purchaser who obtained possession of the vehicle prior to the execution of the mortgage but who failed to obtain an assignment of the title certificate from the owner. In support of this contention appellant relies primarily on several provisions of The Vehicle Code, Act of May 1, 1929, P.L. 905, as amended, 75 P.S. § 1 et seq. relating to certificates of title. Section 201 of the Act, as amended, 75 P.S. § 31, concerning the requirement of a certificate of title, provides: '(a) No person who is a resident of this Commonwealth shall own a motor vehicle, trailer, or semi-trailer, in this Commonwealth unless a certificate of title therefor shall have been obtained as provided in this act'. Section 207

[ 174 Pa. Super. Page 403]

    of the Act, as amended, 75 P.S. § 37, concerning the assignment of certificate of title, provides: '(a) In the event of the sale or transfer of the ownership of a motor vehicle, * * * for which certificate of title has been issued, the owner of such motor vehicle, * * * shall execute an assignment of the certificate of title to the purchaser or transferee, with warranty of title, with a statement of all liens, encumbrances, or legal claims on said motor vehicle, * * * the name and address of the holder of said liens, encumbrances or legal claims, sworn to before a notary public or other officer empowered to administer oaths, and deliver the same to the purchaser or transferee at the time of the delivery to him of such motor vehicle, * * *.

'(b) The purchaser or transferee, except as herein provided, shall, within fifteen (15) days of such assignment or reassignment of certificate of title, on a reassignment form furnished by the department, present to the secretary [of Revenue] such assigned certificate of title or reassignment form, sworn to before a notary public or other officer empowered to administer oaths, with the assigned certificate of title attached thereto, together with a statement of all liens, encumbrances, or legal claims on said motor vehicle, * * * with application for ...


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