Habit v. Stephenson, 169.
| Decision Date | 17 April 1940 |
| Docket Number | No. 169.,169. |
| Citation | 217 N.C. 447,8 S.E.2d 245 |
| Court | North Carolina Supreme Court |
| Parties | HABIT. v. STEPHENSON, Sheriff. |
Appeal from Superior Court, Northampton County; W. H. S. Burgwyn, Special Judge.
Action in claim and delivery by John Habit against J. C. Stephenson, Sheriff to recover a beverage cooler which was sold by plaintiff's assignor under title retention contract to the proprietor of a place of business closed in a proceeding for maintaining a nuisance. From a judgment for the defendant, plaintiff appeals.
Reversed.
Civil action in claim and delivery.
The facts are these:
1. On June 22, 1937, the Quinn Furniture Company sold to Ray Weston of Northampton County a General Electric beverage cooler, taking note in the sum of $172.13 and title-retained contract as security therefor. The purchaser stipulated in the contract that the property "will not be used for any purpose in violation of any State or Federal statute". The note and contract were subsequently assigned to the plaintiff, for value, and are in default. They have not been registered.
2. Weston's place of business was closed in a proceeding under C. S. §§ 3180-3187, inclusive, for maintaining a nuisance, and the cooler in question was ordered seized and sold along with the other equipment in the defendant's filling station. The sheriff seized the property pursuant to this order, but before the cooler could be sold, the plaintiff brought this action to recover its possession under the title-retained contract.
3. Neither the plaintiff nor his assignor had any knowledge of or participated in the nuisance. Nor were they parties to or had any notice of the proceeding in which the property was ordered seized and sold.
4. The value of the cooler at the time of the seizure by the sheriff was $125.
The trial court ruled that as the property had been used in the maintenance of a nuisance, the defendant was entitled to retain possession. Plaintiff appeals, assigning error,..
W. D. Pruden, of Edenton, for plaintiff, appellant.
E. B. Grant, of Jackson, for defendant, appellee.
The question for decision is whether movable personal property found to be used by a mortgagor in conducting a nuisance, without the knowledge or consent of the mortgagee and in violation of a covenant against such use, can be held under an order of seizure and sale when it appears that the mortgagor's equity of redemption is nil, and that the mortgagee had no knowledge of and did not participate in the nuisance and was not a party to and had no notice of the proceeding in which the property was ordered seized and sold.
Speaking to the question of procedure in Daniels v. Homer, 139 N.C. 219, 51 S.E. 992, 3 L.R.A., N.S, 997, it was said that an innocent owner of property, thus sought to be forfeited and sold, might assert any rights which he has in an action to recover...
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Oakwood Acceptance Corp., LLC v. Massengill
...sale be given the mortgagee is to afford him an opportunity to protect his rights in the [personal] property." Habit v. Stephenson, 217 N.C. 447, 449, 8 S.E.2d 245, 246 (1940). With respect to personal property, specification of an address in the notice of sale is particularly important sin......
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..." '[t]he registration of the instrument under which [defendant] claims is not material on the question of forfeiture.' Habit v. Stephenson, 217 NC 447 (8 SE2d 245)." Hallman v. State of Ga., 141 Ga.App. 527, 528(2), 233 S.E.2d 839, supra. "The claimant who has failed to [register] his [inte......
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...of the said National Cash Register Company in the property forfeited. According to the construction of the statute by the Court in Habit v. Stephenson, supra, the Court was also in error assuming that the statute, C.S. § 3184, requiring the sale of condemned property in the manner provided ......
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Farmers & Merchants Bank of Trenton v. State, 66017
...'The registration of the instrument under which plaintiff claims is not material on the question of forfeiture.' Habit v. Stephenson, 217 N.C. 447, 8 S.E.2d 245. As pointed out in Bratcher v. Ashley, Ky., 243 S.W.2d 1011, the primary purpose is 'not to vest in the Commonwealth an equitable ......