(Dissenting):
It seems clear to me that when Mun-day, at a time prior to the certificate of title law, executed the promissory note and the mortgage securing it, in which the Northside Auto Sales Company was the payee and mortgagee, and the latter then assigned the instruments to the plaintiff for a valuable consideration, the transaction gave to the plaintiff, as between the parties, a lien upon the automobile in accordance with the terms of the mortgage, as effectually as a mortgage executed by the Northside Auto Sales Company, as mortgagor would have done. Of course, that lien would not have been valid as against a bona fide purchaser from the mortgagor in possession.
But the certificate of title law became effective while the mortgagor still had possession and the record title. It could transfer the title free of the mortgage lien to an innocent purchaser for value, but to do so, it was necessary that the method prescribed by the then applicable law — the certificate of title law, was followed. The pertinent sections of that law are quoted in the majority opinion. It will be seen that the plaintiff complied with that law after it became effective, and that the defendant never complied with it. Had the defendant insisted upon compliance before paying, the plaintiff’s mortgage would have been disclosed, arid no one would have suffered loss. He did not do so. The law expressly and positively declares where the loss shall fall under such circumstances, and takes it from the power of the courts to shift the loss because of any inequities that may exist or be supposed to exist. It provides that: “No court in any ease at law or in equity shall recognize the right, title or interest of any person * * * unless evidenced by certificate of title”, etc.
It seems to me that in denying the plaintiff’s title, evidenced by a certificate of title, as required by law, in favor of the defendant, who has made no pretense of complying with it, the court is not performing the judicial functien of interpreting and applying the law.
That this certificate of title law makes the certificate a sine qua non of a title was decided in Crawford Finance Co. v Derby, 16 OO 285, 63 Oh Ap 50.
In my opinion, the majority opinion' in the case at bar is not in accord with either the letter or spirit of this law.