I dissent.
The defendant held the legal title to the car, which had been sold under a conditional sales contract giving the seller his option, in case of default in making installment payments, either to declare the whole balance due and bring an action for its recovery, or to repossess the car.
Stockdale, the original contract purchaser, transferred possession of the car to one Hollis and assigned to him his interest in the contract of purchase. Thereafter, default having been made in several installment payments, the defendant here exercised its option under the contract and brought an action for the full amount of the balance of purchase price. After the action was brought defendant made demand upon Hollis for possession of the car and he, having no knowledge that action had been brought, and not being then advised of it, turned the car over to this defendant.
Afterward Stockdale and Hollis each transferred whatever interest either had in the car to the plaintiffs here, who made demand upon the defendant for the car, which was refused.
It is conceded that, under the decisions in this state, when the legal owner of personal property which is the subject of conditional sale by contract containing the terms above set forth, elects to sue for the whole amount owing, he thereby confirms absolute title in the purchaser. It seems to me that it must follow as an inevitable conclusion that it was the duty of the seller to facilitate the transfer of title to the purchaser or his successor in interest. Instead, by what seems to me a fraudulent concealment of its election it got possession of the car. That possession could not have been other than wrongful.
After demand made by these plaintiffs the defendant caused a writ of attachment to be issued in its action above mentioned and turned the car over to the sheriff to be held by him under the writ.
I think the facts in this case are clearly distinguishable from those upon which the case of Samuels v. Barnet, 79 Cal.App. 529 [250 P. 405,] was decided. In that case the legal owner, seller under the contract, never had possession of the car, nor did Samuels, the purchaser's assignee. *Page 156 The car was stored in a garage by the purchaser, who gave plaintiff an order for it. Plaintiff did not take physical possession of the car, or make any attempt to have the legal title in himself, as required by the provisions of the Motor Vehicle Act. In this state of affairs, the plaintiff in an action to recover the purchase price of the car caused an attachment to be levied upon it, and it was sold to the defendant Barnet under execution sale. The court held that the sale to the plaintiff Samuels was constructively fraudulent under the provisions of section 3440 of the Civil Code, and I think rightly so held.
Here the defendant, holding evidence of legal title, by its own act divested itself of any rightful title, obtained possession of the car fraudulently and refuses the demand of plaintiffs who have succeeded to the equitable title and who can only obtain possession or record title by the act, voluntary or enforced, of the defendant. It seems to me that the position of defendant is wholly without merit either in law or good morals.
A petition for a rehearing of this cause was denied by the District Court of Appeal on April 29, 1930, and a petition by appellants to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on June 5, 1930.