HENRY v. GENERAL FORMING MARSALISI

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District Court of Appeal, Second District, Division 2, California.

HENRY v. GENERAL FORMING, Ltd., et al. (MARSALISI, Third-Party Claimant).*

Civ. 16250.

Decided: May 19, 1948

John L. Bisher, Jr., of Los Angeles, for third-party claimant and appellant, Charlie Marsalisi. Thomas W. Hughes, of Los Angeles, for respondent.

This is an appeal from an order of the trial court decreeing that third party claimant (appellant) had no right title or interest in and to an automobile as against the claim of plaintiff (an attaching creditor of defendants) at the time of the levy of a writ of attachment upon said automobile.

These are the undisputed facts:

On March 21, 1947, plaintiff filed an action against defendants to recover for failure of defendants to pay a promissory note. On or about April 8, 1947, defendant Morehouse was notified by the Howard Automobile Company that his name had come up on their list for a Buick automobile, and he was entitled to buy the same. Said defendant did not have the money to buy the car. However, at about this time he met an agent of third party claimant and told him that he had a right to buy a new Buick, but did not have the money to pay for it. the agent took defendant Morehouse to third party claimant where Mr. Morehouse offered to sell his right in the automobile to third party claimant for $200.00. This offer was accepted by third party claimant and he gave $200.00 to Mr. Morehouse.

On or about April 19, 1947, third party claimant handed Mr. Morehouse a cashier's check payable to the Howard Automobile Company for the full purchase price of the automobile and told Mr. Morehouse to register the car in his own name. Arrangements were then made between them that the interest of third party claimant was not to be known to the Howard Automobile Company or the Motor Vehicle Department. On the same day two agents of third party claimant accompanied Mr. Morehouse to within half a block of the Howard Automobile Company where they waited while Mr. Morehouse went to the automobile agency, gave it the certified check, signed a registration certificate in which he gave his name and stated that he was the sole owner of the automobile. He then drove the automobile from the agency to where the two agents of third party claimant were waiting and delivered it to them.

On April 28, 1947, plaintiff caused an attachment to be levied upon the automobile as the property of defendant Morehouse. On said date the sheriff of Los Angeles county took it into his possession pursuant to the writ of attachment. Immediately thereafter third party claimant, pursuant to the provisions of section 689 of the Code of Civil Procedure, filed a third party claim seeking possession of the automobile upon the ground that he was the owner thereof. The trial court decided adversely to his contention.

This is the sole question necessary for us to determine:

Where a third party claimant counsels and aids a defendant in violating a provision of the Motor Vehicle Code of California regarding the registration of a motor vehicle, is he entitled to have the courts of this state aid him in establishing title to an automobile, possession of which he has obtained pursuant to a contract involving a violation of the motor vehicle code?

This question must be answered in the negative and is governed by these pertinent rules of law:

(1) Application for the original registration of a vehicle ‘shall be made by the owner’ to the Motor Vehicle Department upon a form which shall contain among other things ‘(a) the full name and business or residence address of the owner, and of the legal owner if any.’ (Sec. 143, Vehicle Code.) ‘Shall’ as used herein is mandatory. (Sec. 16, Vehicle Code.)

(2) It is a misdemeanor for any person to violate any provision of the Vehicle Code. (Sec. 230, Vehicle Code.)

(3) Any person who counsels or aids another in the commission of a misdemeanor is guilty of a misdemeanor. (Sec. 659, Penal Code.)

(4) When a party who is culpable is compelled to disclose the fact that the transaction upon which his claim is predicated involves a violation of the law, the courts will leave the offender against the law in the same position he finds himself at the outset of the litigation. (Kyne v. Kyne, 16 Cal.2d 436, 438, 106 P.2d 620; Asher v. Johnson, 26 Cal.App.2d 403, 404, 411 et seq., 79 P.2d 457; Duntley v. Kagarise, 10 Cal.App.2d 394, 397, 52 P.2d 560. See also 17 Corpus Juris Secundum, 1939, Contracts, § 272, p. 656.

Applying the above stated rules to the facts of the present case it is undisputed that third party claimant counseled and aided defendant Morehouse in violating the provisions of Section 143 of the Vehicle Code.1 Defendant Morehouse committed a misdemeanor in filing the application for registration of the motor vehicle by falsely stating therein that he was the sole and legal owner thereof.2 Third party claimant by counseling and aiding3 defendant Morehouse to violate section 143 of the Vehicle Code committed a misdemeanor.4

It is conceded by third party claimant that the procedure that was followed in this case was the only way by which he could obtain the Buick automobile.5 Therefore, since in order to establish his title to the automobile it was necessary for him to disclose the fact that there had been a violation of law counseled and aided by him, he was precluded from obtaining any assistance from the courts of this state in establishing his alleged claim to the property in controversy, and the trial court properly left the parties in the same position that they were in when the third party claim was filed.6

In view of our conclusion no useful purpose would be served in discussing such cases as Boles v. Stiles, 188 Cal. 304, 204 P. 848; Willard H. George, Ltd. v. Barnett, 65 Cal.App.2d Supp. 828, 150 P.2d 591, and Goodman v. Anglo—California Trust Co., 62 Cal.App. 702, 217 P. 1078, relied on by third party claimant wherein there was no illegality in the contract which constituted the basis of the suit.

The order is affirmed.

FOOTNOTES

1.  See rule 1, supra.

2.  See rule 2, supra.

3.  Defendant Morehouse testified as follows:‘Q. Did he [third party claimant] advise you to go ahead and put it in your name? A. Well, he said well, I guess he said to transfer the record, to clear the record, I believe that is the way he spoke, it would have to go in my name, just to clear the record, I don't know exactly.‘Q. He went ahead and told you to put it in your name to clear the records. A. That's right.’

FOOTNOTE.  ‘Q. By Mr. Hughes: Then I understand you did sign the application for registration of the car in your name? A. Yes, sir.‘Q. That was under instruction of Mr. Marsalisi [third party claimant] to do so, to clear the records, is that correct? A. Yes, sir.’

4.  See rule 3, supra.

5.  Mr. Marsalisi, third party claimant, testified as follows:‘You were buying the option of Mr. Morehouse for the car, and the car was to be paid for by you, and you advised Mr. Morehouse to follow through and put it in his name and after these papers were through, and the pink slip came back, the car would be transferred to you, is that correct? A. That is the way they do it, I mean, it has got to be delivered to the man that put up the order.’

6.  See rule 4, supra.

McCOMB, Justice.