On appeal from the Supreme Court, whose opinion is printed in 12 N.J. Mis. R. 726.
For the appellant, Thomas J. Kennedy.
For the respondent, Albert Comstock.
The opinion of the court was delivered by
PERSKIE, J. The primary question requiring decision is whether one of two joint owners of an automobile may maintain an action of replevin for that automobile against a stranger?
The facts were stipulated. In January of 1932, Albert and Henrietta Raymond, husband and wife, purchased, as tenants in common, a 1930 Packard coupe automobile. Their bill of sale was filed with and approved by the commissioner of motor vehicles of New Jersey and a registration card was duly issued to them as such owners.
Prior to their having purchased the automobile, the Kleinfeld Furniture Company obtained a judgment in the Clifton District Court against Henrietta Raymond for $500. While she was still the owner of an undivided one-half interest in the automobile, the sergeant-at-arms of the District Court levied thereon under said judgment and at the execution sale
sold all her right, title and interest to appellant, who was the plaintiff below. The day before the sale the husband served a claim of property with the sergeant-at-arms, who ignored it and proceeded with the sale without granting the ten-day delay authorized under the statute. See sections 190 and 191 of the District Court act. 2 Comp. Stat. 1709-1910, pp. 2008, 2009.
Thereafter plaintiff instituted an action at law, in replevin, for said automobile in the Passaic County Circuit Court against the Motor Plan Company, Tri-State Discount Company and John M. Mosley, acting chief of the police department of the city of Paterson, New Jersey, alleging an illegal taking thereof, &c. None of these defendants entered an appearance to said suit or appeared at the trial thereof. Neither the co-owner, Albert Raymond, nor respondent was made a party defendant to said suit by the plaintiff.
The General Auto Sales Company, however, petitioned the court for leave to intervene, alleging that the automobile was its property; leave to intervene was granted. Thereafter, it filed an answer in which it alleged, in substance, that it had the title to the automobile; that it purchased the automobile under a foreclosure sale of a chattel mortgage which had been executed on the automobile by one, Hilda Tucker, to the Motor Plan Company. The circumstances under which Hilda Tucker became possessed of the automobile so mortgaged is not made to appear.
At the trial defendant, who intervened as aforesaid, withdrew the allegation of title in its answer; it, in fact, withdrew all allegations set forth in its answer "except the denial of property and right of possession in plaintiff."
At this posture of the proofs the learned trial judge held that, while the exclusive property in the plaintiff was necessary to sustain the right of replevin, yet, since the intervenor had no paper title, nor a perfected lien thereon, that it was a stranger with no interest in the subject-matter, and, therefore, plaintiff was entitled to judgment. The Supreme Court, however, held, under the principle laid down in Chambers v. Hunt, 22 ...