South Georgia Motor Co. v. Jackson

• Decision Date: 08 November 1922
• Docket Number: 292.
• Citation: 114 S.E. 478,184 N.C. 328
• Parties: SOUTH GEORGIA MOTOR CO. v. JACKSON, SHERIFF.
• Court: North Carolina Supreme Court

114 S.E. 478

184 N.C. 328

SOUTH GEORGIA MOTOR CO. v. JACKSON, SHERIFF.

No. 292.

Supreme Court of North Carolina

November 8, 1922

Appeal from Superior Court, New Hanover County; Cranmer, Judge.

Action by L. G. Roberts, F. A. Coleman, and W. E. Gray, partners trading and doing business under the firm name and style of the South Georgia Motor Company, against George C. Jackson Sheriff of New Hanover County. Judgment for defendant, and plaintiffs except and appeal. Reversed.

Clark C.J., dissenting.

Civil action tried upon an agreed statement of facts. Judgment was entered for the defendant, and the plaintiffs excepted and appealed. The substance of the facts agreed is as follows:

(1) The plaintiffs are residents of the city of Savannah, Ga., and copartners engaged in the business of selling automobiles under the general name of South Georgia Motor Company.

(2) On February 14, 1920, the plaintiffs sold to Christos N Christakos and Chan Mavrikis, a Cadillac touring car at the price of $2,000, the defendants paying $500 in cash and giving their joint promissory note for $1,500, payable 30 days after date. To secure the deferred payment the purchasers gave the plaintiffs a mortgage on the car, which was registered on the 25th day of September, 1920, in Chatham county, Ga.

(3) On September 21, 1920, said Mavrikis was arrested and imprisoned in the city of Wilmington for the illegal transportation in said car of intoxicating liquor. He was operating the car at the time of his arrest, contrary to the laws of the state and of the United States. The defendant seized the automobile, and Mavrikis afterward gave a bond for his appearance on September 28th, but forfeited his bond, did not appear, and has never been tried on the offense charged. Judgment absolute was rendered on the appearance bond, and the automobile was condemned by the recorder's court and afterward the sheriff, under the direction of the court, advertised it for sale in accordance with the statute.

(4) Plaintiffs, who held the mortgage for $1,500 had no knowledge that Christakos or Mavrikis intended to use the car for the illegal transportation of liquor or other violation of the law and had no knowledge of such violation until after Mavrikis was arrested.

(5) No part of the mortgage for the $1,500 has been paid, and Mavrikis and Christakos are both insolvent.

(6) The market value of the automobile at the time of the seizure was $1,250.

(7) The mortgage was executed on the 14th day of September, 1920, but was not recorded by the plaintiffs until a few days after the arrest of Mavrikis in the city of Wilmington.

K. O. Burgwin, of Wilmington, for appellants.

Rountree & Carr, of Wilmington, for appellee.

ADAMS, J.

The plaintiffs admit that the statute providing for the confiscation or forfeiture of an automobile operated in the unlawful transportation of intoxicating liquor is a valid exercise of the police power (Daniels v. Homer, 139 N.C. 219, 51 S.E. 992, 3 L. R. A. [ N. S.] 997), but they deny that the statute is broad enough to include the interest which they claim in the condemned car by virtue of their mortgage. It will be noted that the mortgage was executed on September 14th, and registered on September 25th, four days after the arrest of Mavrikis.

"If any person * * * shall have * * * in possession any spirituous * * * liquors in violation of law, the sheriff * * * who shall seize such liquors by any authority provided by law, is * * * authorized and required to seize and take into his custody any * * * automobile * * * used in conveying, concealing or removing such spirituous * * * liquors, and safely keep the same until the guilt or innocence of the defendant has been determined upon his trial * * * and upon conviction of a violation of the law, the defendant shall forfeit and lose all right, title and interest in and to the property so seized; and it shall be the duty of the sheriff having in possession the * * * automobile * * * so used * * * to advertise and sell the same under the laws governing the sale of personal property under execution." C. S. § 3403.

This statute was construed and the rights of a mortgagee were discussed in Skinner v. Thomas, 171 N.C. 103, 87 S.E. 979, L. R. A. 1916E, 338. In that case it was said:

"The operative and material part of the statute is, 'and upon conviction of a violation of said law said defendant shall lose all right, title, and interest in and to the property so seized,' and as this confines the forfeiture to the right, title, and interest of the defendant, we are without power to extend its terms and embrace the right, title, and interest of the plaintiffs, mortgagees, who were not defendants and who have had no connection with the illegal conduct of the defendant. The language of the second and third sections of the act is somewhat broader than that used in the first section, but as we have seen, the second section only deals with the sale of property when no person is arrested, and the third with the distribution of the proceeds of sale, and cannot be held to extend the forfeiture in the first section beyond its terms.

The distinction between the case before us and the federal cases cited by the defendant (U.S. v. Two Bay Mules, 36 F. 84; Distillery v. U. S., 96 U.S. 395; U.S. v. One Black Horse, 129 F. 167; U.S. v. Two Horses, Fed. Cases, No. 16578; U.S. v. Distillery, Fed. Cases, No. 14963) is clear, as the federal cases are based on statutes which declare the property forfeited, while our statute only confiscates the right, title, and interest of the defendant in the property.

The decision in Daniels v. Homer, supra, is upon the same ground, the statute then before the court declaring that the nets used illegally, and not the interest of the defendant in the nets, should be forfeited."

It is argued that in the case at bar the plaintiffs' mortgage was not registered. Nor does it appear that the mortgage referred to in Skinner's Case was registered. There is nothing to indicate registration in the statement of the case, in the briefs of counsel, or in the opinion of the court. Besides, the statutes providing for the registration of mortgages are intended primarily to protect creditors and purchasers and not to attach to the instrument additional efficacy as between the mortgagor and mortgagee. In Williams v. Jones, 95 N.C. 505, Ashe, J., said:

"By section 1254 of the Code, it is declared that 'no deed of trust or mortgage for real or personal estate, shall be valid at law to pass any property as against creditors and purchasers for a valuable consideration from the donor, bargainor or mortgagor, but from the registration of such deed of trust or mortgage,' etc.

Prior to the passage of this act, a mortgage was valid even against creditors and purchasers, and it was required to be registered for their benefit. But, as between the parties, their rights were undisturbed by the act, and they are left as they existed before its passage. There is no principle better settled than that, as between the parties, a mortgage is valid without registration. Legett v. Bullock, 44 N.C. 283."

It is contended that the court's construction of the statute in Skinner v. Thomas, supra, affords such opportunity for collusion as will destroy the purpose of the law in its practical operation. But the court cannot accept such possibility as a ground for extending the terms of the statute to cases not within the contemplation of the Legislature; it is our duty to declare the law, not to make it. State v. Johnson, 181 N.C. 640, 107 S.E. 433. In the instant case, however, the defendant admits that the plaintiffs were not in criminal collusion with the purchasers of the car.

Upon review of the record, we think the judgment should be reversed.

Reversed.

CLARK C.J. (dissenting).

This case comes up on an agreed state of facts. On September 14, 1920, the plaintiff in Chatham county, Ga., sold to Christos N. Christakos and Chan Mavrikis a Cadillac automobile, which is duly described, for the sum of $2,000. The purchasers paid $500 in cash for the property and gave their joint promissory note for $1,500. This was a conditional sale as to which the failure to register has the same effect as the failure to register a mortgage. C. S.§ 3312. The vendor did not record this instrument in Georgia until September 25th, after the purchasers had been arrested on September 21st, for transporting intoxicating liquor in said automobile, and after the said automobile had been seized and held by the sheriff of New Hanover for their violation of the laws of this state.

The question presented is whether the action of the vendor in recording the conditional sale subsequent to the legal seizure here under due process of law for violation of the law of this state can divest the lien which the state acquired by the seizure.

The statute, C. S. § 3403, provides that when the law is violated which prohibits the keeping or having--

"in possession any spirituous, vinous or malt liquors in violation of law, the sheriff or other officer of any county city or town, who shall seize such liquors by any authority provided by law, is hereby authorized and required to seize and take into his custody any vessel, boat, cart, carriage automobile and all horses and other animals or things used in conveying, concealing or removing such spirituous, vinous or malt liquors, and safely keep the same until the guilt or innocence of the defendant has been determined upon his trial for the violation of any such law making it unlawful to so keep in possession any spirituous, vinous or malt liquors, and upon conviction of a violation of the law, the defendant shall forfeit and lose all right, title and interest in and to the property...