Commercial Credit Co. v. State, Case Number: 20711
| Decision Date | 06 December 1932 |
| Docket Number | Case Number: 20711 |
| Citation | 16 P.2d 879,1932 OK 796,160 Okla. 201 |
| Parties | COMMERCIAL CREDIT CO. v. STATE ex rel. |
| Court | Oklahoma Supreme Court |
¶0 1. Intoxicating Liquors--Forfeiture of Automobile Used in Transportation--Right of Lienholder to Intervene in Proceeding.
The holder of a valid lien on an automobile may intervene in a proceeding to forfeit an automobile under the provisions of section 1, ch. 188, Session Laws 1917 (section 7023, C. O. S. 1921), for the purpose of saving his lien thereon and preventing a forfeiture of his rights therein.
2. Sales--Conditional Sale Contract not Required to Be Filed to Preserve Lien as Against Others Than Innocent Purchasers or Creditors of Vendee.
A conditional sale contract duly executed is void only as against innocent purchasers or the creditors of the vendee (section 8551, C. O. S. 1921), and there is no requirement that a conditional sale contract shall be filed in order to preserve the lien created thereby as against anyone other than those named.
3. Same--Essentials of Bona Fide Purchaser.
To constitute one a bona fide purchaser, three essential elements must be present: First, a valuable consideration; second, the absence of notice; and, third, the presence of good faith. If any one of those essential elements is lacking, a person is not a bona fide purchaser.
4. Same--State Held not "Creditor" of Automobile Used in Transportation of Intoxicating Liquor as Against Lien Under Conditional Sale Contract Unfiled.
The state of Oklahoma is not a creditor of an automobile used in the illegal transportation of intoxicating liquors, or of one who so uses an automobile, within the meaning of section 7650 or section 8551, C. O. S. 1921.
Appeal from County Court, Murray County; J. H. Casteel, Judge.
Proceeding by the State to forfeit automobile used in transporting intoxicating liquor; the Commercial Credit Company intervening. From judgment of forfeiture, the intervener appeals. Reversed and remanded, with directions.
Young & Lewis and Clarence Mills, for plaintiff in error.
John C. Powell, Co. Atty., for defendant in error.
¶1 This cause is in this court on an appeal from a judgment of the county court of Murray county against the intervener therein, the Commercial Credit Company, a corporation, adjudging a certain Ford automobile to be forfeited under the provisions of section 1, chapter 188, Session Laws 1917, being section 7023, C. O. S. 1921. Hereinafter we will refer to the parties as the intervener and the plaintiff.
¶2 That such an intervention was authorized was held by this court in One Chrysler Coupe v. State, 146 Okla. 98, 293 P. 543.
¶3 The provisions of the statute in question are as follows:
"All vehicles, including automobiles, and all animals used in hauling or transporting any liquor the sale of which is prohibited by the laws of this state, from one place to another in this state in violation of the laws thereof, shall be forfeited to the state by order of the court issuing the process by virtue of which such vehicles and animals were seized, or before which the persons violating the law, or the vehicles or animals are taken by the officer or officers making the seizure."
¶4 Prior to the adoption of that statute there was no provision of our law for the forfeiture of an automobile. One Cadillac Automobile v. State, 68 Okla. 116, 172 P. 62; One Hudson Super-Six Automobile v. State, 70 Okla. 40, 173 P. 1137; Cox v. State, 70 Okla. 131, 173 P. 445; First Nat. Bank of Roff v. State, 72 Okla. 83, 178 P. 670; State v. One Ford Automobile, 73 Okla. 27, 174 P. 489, and Doc & Bill Furn. Co. v. State ex rel. Selby, Co. Atty., 83 Okla. 128, 200 P. 868. Aside from the statute under consideration, we know of no law of the state of Oklahoma providing for the forfeiture of an automobile used in violation of the prohibitory liquor law.
¶5 The record shows that one Howard (H. H.) Kirkpatrick purchased the automobile in question under a written contract showing an unpaid purchase price indebtedness of $ 432.12, which was evidenced by a promissory note payable in twelve installments; that the sale contract was not filed for record in Pottawatomie county where the automobile was purchased; that the automobile was taken by Kirkpatrick to Murray county where it remained for more than 120 days prior to the seizure thereof on the 12th day of March, 1929; that the sale contract was not filed for record in Murray county until the 15th day of March, 1929, three days after the seizure of the car; that the car was being used in Murray county for the transportation of intoxicating liquors, in violation of the provisions of the prohibitory liquor law, by one Guy Self under such circumstances as to charge Kirkpatrick with knowledge of the illegal use thereof; that the intervener had no knowledge of the illegal use thereof and did not consent to the illegal use thereof; that the automobile was seized by the officers of Murray county while being so illegally used; that at the time of the seizure the intervener was the owner and holder of the note and all rights under the contract; that the officers of Murray county had no knowledge of the existence of the sale contract at the time of the seizure, and that the state of Oklahoma had no interest in the automobile other than that, if any, arising by virtue of the provisions of the statute in question.
¶6 The intervener was permitted to intervene in the action for the forfeiture of the car and after a hearing the trial court concluded that at the time of the seizure "the intervener had no valid subsisting lien in Murray county by reason of the fact that the same (the sale contract) was not recorded." That conclusion was erroneous.
¶7 There is a provision in our statute that such a lien "shall be void as against innocent purchasers, or the creditors of the vendee" (section 8551, C. O. S. 1921), and a provision that such a lien shall be "void as against creditors of the mortgagor, subsequent purchasers, and incumbrancers of the property, for value" (section 7650, C. O. S. 1921), if the instrument is not filed in the office of the county clerk as provided by those sections, but there is no provision of our statutes requiring that a contract be filed in order to create or preserve a valid lien as against any one other than those named in the two sections. Frick v. Oats, 20 Okla. 473, 94 P. 682; Gibson v. Linthicum, 50 Okla. 181, 150 P. 908; Dabney v. Hathaway, 51 Okla. 658, 152 P. 77; Fiegel v. First Nat. Bank, 90 Okla. 26, 214 P. 181; Jarecki Mfg. Co. v. Fleming, 123 Okla. 147, 252 P. 17, and Morgan v. Stanton Auto Co., 142 Okla. 116, 285 P. 962. By the decisions of this court, the classes named in the two sections have been limited. In Blevins v. W. A. Graham Co., 72 Okla. 308, 182 P. 247, they were limited to subsequent purchasers or incumbrancers "in good faith," and this court has uniformly held that actual notice of the existence of a lien defeats the right of a subsequent purchaser or incumbrancer although the instrument has not been filed in the office of the county clerk. Such was the holding in Blevins v. W. A. Graham Co., supra, and Moneyweight. Scale Co. v. Hale-Halsell Grocery Co., 57 Okla. 135, 156 P. 1187, wherein, with reference to a sale contract, this court held:
"* * * The filing of a contract of conditional sale with a register of deeds is constructive notice only of its existence; and if a party has actual notice of such conditional sale contract, the purpose of the statute is accomplished."
¶8 We so held in Security Nat. Bank v. Truscon Steel Co., 92 Okla. 81, 218 P. 665; Rock Island Implement Co. v. Fagerquist, 99 Okla. 282, 227 P. 117, and C. Cretors Co. v. McMillan, 106 Okla. 260, 234 P. 189. The reason for the rule is that the filing of a chattel mortgage or conditional sale contract in the office of the county clerk is not for the purpose of establishing or preserving a lien, but only for the purpose of giving constructive notice of the existence of a lien. National Bond & Inv. Co. v. Central Nat. Bank, 142 Okla. 96, 285 P. 828. Therein this court said:
¶9 See, also, Morgan v. Stanton Auto Co., supra.
¶10 It is nowhere contended that the state of Oklahoma is a purchaser or incumbrancer of the car under the provisions of either of the sections. The plaintiff contends that the state of Oklahoma is a creditor of Kirkpatrick and of the automobile under the provisions of each of the sections, and that, being a creditor of Kirkpatrick and of the automobile, the sale contract is void as to it for the reason that it was not filed. In support of that theory the plaintiff, in its brief, says that the state of Oklahoma became a creditor of Kirkpatrick at the moment of the seizure of the car by the officer and that it obtained a lien on the car at the moment of the seizure. Its claim to be a creditor is based on a statement that the term "creditor" has been held to be sufficiently comprehensive to include those holding claims arising out of tort. It assumes that a crime is a tort. In support thereof it cites Shelby v. Ziegler, 22 Okla. 799, 98 P. 989, wherein this court held that a party having a claim against a defendant growing out of a tort, independent of any contract, is a creditor. Nothing in that opinion holds that the state is a...
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