
    Shaw, Appellant, v. Wearley Motor Co. et al., Appellees.
    (No. 37177
    Decided March 14, 1962.)
    
      Mr. Stephen A. Mack, for appellant.
    
      Mr. Milton McCreery and Mr. Lewis H. Kirshner, for appellees.
   Weygandt, C. J.

The automobile here involved was sold and then resold several times, finally to the plaintiff. The controversy arises by reason of the fact that the original purchaser, a resident of Michigan, fraudulently resold the automobile on which he had executed a chattel mortgage and then concealed its existence. Hence, the mortgage lien was not noted on the certificate of title obtained by the plaintiff when he purchased the automobile from the defendant, the Wearley Motor Company, in Toledo, Ohio.

On May 21,1960, the mortgagee repossessed the automobile without the plaintiff’s consent or knowledge.

Then the plaintiff made a demand on the defendant, the Wearley Motor Company, for the value of the automobile, for damages and for expenses. On the defendant’s refusal to pay, the plaintiff instituted this action alleging a breach of warranty of a valid title to the automobile.

The journal entry of the Court of Common Pleas reads as follows:

“The matter came on for hearing in open court * * * on the motion of the defendant, Wearley Motor Company, and the defendants, Clarence Tracy and Bernard D. Ross, d/b/a Ross Motors, joining therein, for a summary judgment against plaintiff * * * the court having examined the affidavit filed in support of said motion and the briefs of counsel, and being of the opinion that the pleadings in this action, together with the affidavit submitted in support of said motion, show that there is no genuine issue as to any material fact, and that the defendants, Wearley Motor Company, Clarence Tracy and Bernard D. Ross, have a right to such summary judgment as a matter of law; it is therefore, ordered that judgment be entered in favor of defendants, Wearley Motor Company, Clarence Tracy and Bernard D. Ross, and against plaintiff and that this cause be dismissed as to the defendants, Wearley Motor Company, Clarence Tracy and Bernard D. Ross, and that each of them recover their costs herein expended. Plaintiff hereby excepts to the entry of the foregoing order.”

This judgment was affirmed by the Court of Appeals.

The defendants rely strongly on the decision of this court in the case of Kelley Kar Co. v. Finkler, 155 Ohio St., 541, in the third paragraph of the syllabus of which it was held:

“3. Under the provisions of Section 6290-4, General Code [Section 4505.04, Revised Code], an Ohio court cannot recognize the right, title, claim or interest of any person in or to any motor vehicle sold or disposed of or mortgaged or incumbered in Ohio after the effective date of that section of the Code unless such right, title, claim or interest is evidenced by a certificate of title or manufacturer’s or importer’s certificate duly issued in accordance with the provisions of the Certificate of Title Act.”

However, that case involved no guaranty of title as is present in the instant case. This guaranty reads in part:

“The above described automobile is specifically guaranteed as follows:
¿Í* * *
“Title to this car is guaranteed free and clear of all previous liens or incumbrances.”

It is suggested that this express guaranty is impliedly applicable to title defects occurring in Ohio alone where the plaintiff purchased the automobile. One difficulty with this contention is that the word “all” is employed in the guaranty without any semblance of limitation, and it is the view of a majority of this court that the provisions of Section 4505.04, Revised Code, do not nullify such a guaranty when the vendor of an automobile chooses to incorporate it in the terms of the transaction.

Under these circumstances it was error for the trial court to render a summary judgment for the defendants. The judgment is reversed and the cause is remanded to the Court of Common Pleas for final determination on the issues joined.

Judgment reversed.

Zimmerman, Matthias and Bell, JJ., concur.

Taet and O’Neill, JJ., concur in the judgment.

Herbert, J., not participating.

Taft, J.,

concurring. I regret the necessity for this concurring opinion. However, if, as suggested in the first two paragraphs of the majority opinion, the automobile was “repossessed” by a “mortgagee” whose mortgage lien was not noted on any certificate of title and that mortgage lien is ail that is relied upon to establish a defect in the title received by plaintiff, then this court should affirm instead of reverse the judgment of the Court of Appeals.

In order to recover on the guaranty of title, the burden would be on plaintiff to allege and prove that someone else had some valid interest in or to the automobile.

In his petition, plaintiff alleges “that on or about May 21, 1960, said * * * automobile was removed from tbe driveway of the father of plaintiff, where it was parked at 6066 Chicago Pike, Holland, Ohio, by Holtzbaugh Rent A Car, Inc. * * * the true owner thereof,” and also refers to “the appropriation thereof by said owner, Holtzbangh Rent A Car, Inc.”

There are no other allegations about what the petition refers to as “the defective nature of plaintiff’s title” and “the defective title to said automobile.” The only reference to any mortgagee in the petition is the reference to the finance company to which plaintiff gave a mortgage on purchasing the automobile from Wearley Motor Company.

No party to the instant case has offered any evidence of the law of Michigan or asked that judicial notice be taken thereof. Section 2317.45, Revised Code, provides that “to enable a party to offer evidence of the law in another jurisdiction or to ask that judicial notice be taken thereof, reasonable notice shall be given to the adverse parties either in the pleadings or otherwise.” Hence, presumptively, the law of Michigan, to the extent applicable in the instant case, must be presumed to be the same as the law of Ohio. State, ex rel. Safeguard Ins. Co., v. Vorys, Supt. of Ins. (1960), 171 Ohio St., 109, 113, 167 N. E. (2d), 910. See Mendelson v. Mendelson (1930), 123 Ohio St., 11, 173 N. E., 615.

Under the law of Ohio, one who claims a motor vehicle under a mortgage not noted on a certificate of title therefor has no rights in or to such vehicle. Kelley Kar Co. v. Finkler (1951), 155 Ohio St., 541, 99 N. E. (2d), 665 (paragraph three of syllabus). On the record in the instant case, one who claims such a vehicle under such a Michigan mortgage would have no greater rights even in Michigan. In other words, a mortgagee whose mortgage is not noted on any certificate of title would have no greater right in and to the automobile as against the plaintiff, either in Ohio or in Michigan, than would a thief. Certainly, the guaranty of title involved in the instant case would not protect plaintiff against the theft of his automobile.

However, there are certified copies of (1) a Michigan certificate of title issued to Holtzbaugh Rent A Car, Inc., on January 12, 1959, (2) an assignment thereof in Michigan in September 1960 to Earl Holtzbaugh, Inc., (3) a subsequent assignment thereof in Michigan from Earl Holtzbaugh, Inc., for an apparent substantial consideration on September 16, 1960, to a Michigan resident named Hagerman and (4) a Michigan certificate of title issued to Hagerman on October 6, 1960.

From these documents, it can reasonably be inferred that someone on behalf of Holtzbaugh Rent A Car, Inc., got possession of the car taken from plaintiff on May 21, 1960, and Earl Holtzbaugh, Inc., sold and delivered possession of that car for a valuable consideration to Hagerman in September of 1960. No evidence was offered tending to prove bad faith of Hagerman or his vendor. See Morris v. Daniels (1880), 35 Ohio St., 406.

If, as we must presume on this record, the applicable law of Michigan is the same as it would be in Ohio, then in Michigan the possession of the automobile pursuant to the Michigan certificates of title by bona fide purchasers thereof would be lawful. Kelley Kar Co. v. Finkler, supra (155 Ohio St., 541). Hence, in Michigan, plaintiff’s title would be defective.

O’Neill, J., concurs in the foregoing concurring opinion.  