WARGIN v. WARGIN (1946)

This is an appeal by Ida McCleary from a judgment upon her third party claim of ownership of an automobile, which judgment reads as follows: ‘Judgment is hereby ordered against the third party claimant. That she was not the owner of the car involved at the time of the levy.’ Appellant purchased the car from Emil M. Wargin February 21, 1945. She received a bill of sale on that date, and possession of the car which she retained and used thereafter until it was taken by the Marshal May 15, 1945, on an execution issued on a judgment against Emil M. Wargin.

The reporter's transcript of the hearing on the third party claim contains no evidence that Mrs. McCleary received the ownership certificate (pink slip) at the time she bought the car, but it is not material whether she received it then or later. It was in evidence that the Motor Vehicle Department received from Emil M. Wargin on February 23 a notice dated February 21, stating that he had sold the car to Ida McCleary, giving a description of the car and other data, as required by section 177 of the Vehicle Code. The registration card (white slip) was already in the hands of the Motor Vehicle Department, with an application by Emil M. Wargin for re-registration of the car for the year 1945. A new one was eventually issued to him and, together with the ownership certificate, was forwarded to the department and a new ownership certificate and registration card were issued by the department to Mrs. McCleary May 21, 1945, six days after the levy of execution.

The question is: Which prevailed, the attempted transfer of ownership, or the execution?

So far as applicable here, section 186 of the Vehicle Code, as amended, Stats. 1943, Chap. 1129, sec. 1, provides that, ‘No transfer of the title or any interest in or to a vehicle registered hereunder shall pass and any attempted transfer shall not be effective unless and until the parties thereto have fulfilled either of the following requirements:

‘(1) The transferor shall have made proper endorseent and delivery of the certificate of ownership and delivery of the registration card to the transference as provided in this code and the transferee has delivered to the department or has placed in the United States mail, addressed to the department, such certificate and car when and as required under this code with the proper transfer fee and thereby makes application for a transfer of registration except as otherwise provided in Section 180, or

‘(2) The transferor shall have delivered to the department or shall have placed in the United States mail addressed to the department the appropriate documents for the registration or transfer of registration of such vehicle pursuant to such sale or transfer except as provided in Section 178.’

The Vehicle Code makes no provision for a transfer such as the one attempted to Mrs. McCleary, other than by endorsement and delivery of the certificate of ownership and delivery of the registration card and the delivery or mailing of the same to the department with the proper transfer fee and an application for transfer. While section 177 requires an owner, upon selling a vehicle and delivering possession, to immediately notify the department thereof, with his name and address and those of the transferee, and a description of the vehicle, no fee is exacted and the proceeding is not one for the re-registration of the vehicle. Compliance with that section did not relieve the parties of their duty to procure a re-registration of the vehicle and as they did not take the required steps before the levy of the execution, it necessarily follows that no sale or transfer had been made which could defeat the rights of the execution creditor. The cases upon which appellant relies held that an owner who has sold a vehicle, received the purchase price, and delivered possession, is estopped to deny the ownership of the purchaser, and that a creditor of the seller, having no better claim than the seller, also is estopped. These decisions, however, merely gave effect to an exception contained in section 186, prior to the 1943 amendment, which qualified the provision that title did not pass until registration had been made, with the following phrase: ‘except as a transferor may be estopped by law to deny a transfer and except as provided in Sections 178, 180 and 180.5 hereof and in Chapter 3 of this division.’ Carpenter v. Devitt, 49 Cal.App.2d 473, 122 P.2d 79; LeGrand et al. v. Russell et al., 52 Cal.App.2d 279, 126 P.2d 136. The exception was eliminated in the 1943 amendment and the cases therefore are not controlling. The provisions of the statute are clear and positive. The levy of execution gave the judgment creditor a claim superior to that of Mrs. McCleary.

The judgment is affirmed.

SHINN, Justice.

DESMOND, P. J., and KINCAID, J. pro tem., concur.