Kattwinkel v. Kattwinkel , 80 Ohio App. 397 ( 1947 )

This is an appeal from a judgment of the Common Pleas Court of Hamilton county affirming a judgment of the Municipal Court of Cincinnati sustaining a writ of replevin of an automobile in favor of the plaintiff.

The facts developed from the record are:

The plaintiff at the time he entered the armed forces of the United States in 1943 transferred title to an automobile, which he had purchased and partly paid for, to his wife. Such transfer of title was duly evidenced by a certificate of title which was issued to his wife. The plaintiff stated "that at that time the automobile was transferred to his wife, merely as a matter of convenience to her during his stay in the armed forces, and that it was understood between he and his wife that the automobile would be redelivered and transferred to him upon his discharge from the army."

The plaintiff was discharged in the early part of December 1945. He then requested his wife to retransfer the automobile to him and she agreed to do this. On December 7, 1945, he and his wife together sought the services of a notary public to complete such retransfer but were unsuccessful. They agreed to complete the deal the following day, but became involved in a disagreement later in the evening of December 7, 1945, and the wife then refused to retransfer the automobile.

On December 11, 1945, plaintiff filed suit against his wife for divorce and a decree of divorce was granted plaintiff. The wife did not contest the action. Upon the filing of the petition for a divorce, an order was made restraining the wife from disposing of the automobile. In the final decree of divorce, title to the automobile was awarded plaintiff.

Prior to the filing of the petition for divorce and immediately after the last conference of plaintiff and his wife, she transferred title to the automobile to her sister.

This transfer of title was evidenced by a certificate of title delivered to the sister, Verna Hall, one of the defendants herein. Although it is claimed by the plaintiff in his brief that consideration for such transfer was past, there is evidence that while a part of such consideration was monies previously advanced the wife of plaintiff by her sister, the sister paid in addition to such advances the sum of $200 which constituted her discharge pay from the armed forces. The sister testified she paid in all $700 and that she had given her sister, the wife of plaintiff, $300 to defray her expense upon a trip to visit the plaintiff.

The plaintiff's wife testified that she paid off $275 remaining due on the purchase price of the automobile before the return of her husband from overseas, and that her sister had advanced her $500 and paid $200 at the time plaintiff's wife transferred such automobile to her sister.

It is the contention of the plaintiff that the final decree of divorce in which plaintiff was awarded title to the automobile was sufficient to set aside the transfer of title from the wife to her sister and to reinvest such title in the plaintiff. Had the wife still had title to the automobile at the time the restraining order was made, there would be little difficulty with the plaintiff's contention.

There is no direct evidence in the record that the sister knew of any arrangement which plaintiff had with his wife involving this automobile. The peculiar circumstance surrounding the transfer of the automobile to the sister immediately after the tilt of plaintiff with his wife would suggest that the sister was not a bona fide purchaser for value, but a mere suggestion does not rate the dignity of a reasonable inference. Certainly, if the sister was a bona fide purchaser for value, the decree of the court would be unavailing to transfer title to the plaintiff. The sister was not made a party to the divorce action and the decree in that action was unavailing against her certified title ownership of the automobile. The evidence in this case does not reach the level required to show a fraudulent conspiracy between the wife of plaintiff and her sister to defraud the plaintiff of his right to have the automobile returned to him.

In addition to this the sister is the holder of the certificate of title and the plaintiff is not.

Section 6290-4, General Code, provides in part:

"No court in any case at law or in equity shall recognize the right, title, claim, or interest of any person in or to any motor vehicle, hereafter sold or disposed of, or mortgaged or encumbered, unless evidenced by a certificate of title or manufacturer's or importer's certificate duly issued, in accordance with the provisions of this chapter."

This court has held that where it is clearly shown that it was not the intention of the owner to have a certificate delivered to take effect as a transfer of title, the certificate in the hands of a person fraudulently acquiring same may be ignored. Martin v.Ridge Motor Sales, Inc., 78 Ohio App. 116, 69 N.E.2d 93.

This is not such a case. The plaintiff intended to convey title to his wife.

That he had an agreement with her whereby she was to reconvey the automobile to him upon his return from the service, and that she broke this agreement may give rise to some form of action, but, in the face of a certificate of title in the hands of the sister and in view of the evidence presented, will not sustain the writ of replevin.

The judgments of the Common Pleas Court and the Municipal Court are reversed, and judgment may be here entered for the defendant Verna Hall.

Judgment reversed.

HILDEBRANT, P.J., MATTHEWS and ROSS, JJ., concur in the syllabus, opinion and judgment.