T. & H. Motor Co. v. Sands

• Decision Date: 20 December 1923
• Docket Number: 363.
• Parties: T. & H. MOTOR CO. ET. AL. v. SANDS, SHERIFF.
• Court: North Carolina Supreme Court

120 S.E. 459

186 N.C. 732

T. & H. MOTOR CO. ET. AL. v. SANDS, SHERIFF.

No. 363.

Supreme Court of North Carolina

December 20, 1923

Appeal from Superior Court, Rockingham County; Shaw, Judge.

Action in claim and delivery by the T. & H. Motor Company and others against A. P. Sands, Sheriff, to recover possession of an automobile. Judgment for plaintiffs, and defendant appeals. Affirmed.

Clark C.J., and Clarkson, J., dissenting.

Glidewell & Mayberry, of Reedsville, for appellant.

A. W Dunn, of Leaksville, and King, Sapp & King, of Greensboro for appellees.

STACY J.

The essential facts of this case are as follows:

(1) On December 15, 1921, the defendant, A. P. Sands, sheriff of Rockingham county, in the discharge of his duties as such officer, seized an automobile which was being used in violation of the prohibition law in transporting liquor along one of the public highways of Rockingham county.

(2) Two men were riding in the car, one of whom was arrested and the other made his escape. The one making his escape was not known to the sheriff, and he has been unable, up to the present time, to ascertain his identity. The one arrested was tried and convicted in the superior court of Rockingham county for unlawfully transporting liquor in said car, though it does not appear that he held "any right, title or interest in and to the property so seized."

(3) On November 7, 1921, the T. & H. Motor Company sold the automobile in question to one of the plaintiffs, C. Vance Smith, a resident and citizen of Guilford county, and took from him, by way of security for part of the purchase price, a chattel mortgage on the car, which said mortgage was duly registered in the office of the register of deeds for Guilford county, and has never been canceled or satisfied. This fact was made known to the defendant, but he declined to surrender the automobile to the plaintiffs on demand. Whereupon plaintiffs instituted this suit to recover possession of said car. Bond was duly given and a writ of claim and delivery issued therefor, but defendant replevied, giving bond as required by C. S. § 836, and retained possession of the car, as he deemed it his duty to do under C. S. § 3403.

(4) It is admitted that the plaintiffs were in no way connected with, or interested in, the liquor found in the car, or its transportation, and that they had no knowledge of the illegal use of the automobile.

(5) Pending the trial of this action, and while the car was in the warehouse of the Union Motor Company for safe-keeping, the same was destroyed by fire through no fault of the defendant.

Upon these, the facts chiefly relevant, the question presented for decision is whether the defendant is liable to the plaintiffs on his forthcoming bond. We think this question has been decided in favor of the plaintiffs and against the defendant in Randolph v. McGowans, 174 N.C. 203, 93 S.E. 730.

The defendant was authorized and required, under C. S. § 3403, to seize the automobile in question and to keep the same until the guilt or innocence of the defendant could be determined upon his trial. This statute fully warranted the defendant in seizing the property and taking it into his possession. But when he was directed, in this action of replevin, to deliver the property to the plaintiffs (which order relieved him from his obligation to hold it under the statute), he elected to retain the automobile in his possession and to give a bond for its forthcoming as allowed by C. S. § 836. The character of his possession was thereupon changed from that of a custodian under C. S. § 3403, to that of practically an insurer under his bond, and under C. S. § 836. Randolph v. McGowans, 174 N.C. 206, 93 S.E. 730. His present liability, therefore, is to be determined by the provisions of the latter statute.

In keeping with the general trend of authorities, it is the declared law of this jurisdiction that a plaintiff in replevin, in possession of the property under a replevin bond, as well as a defendant in replevin, retaining possession of the property under a forthcoming bond, is liable, at all events, for the return of the property, if the action be decided against him; and the fact that his failure to make return is caused by an act of God, or other circumstance beyond his control, is of no avail to relieve him from his obligation, nor is he to be discharged by a showing of a want of negligence on his part, C. S. §§ 833 and 836.

Upon the record, and under the law as now written, the judgment in favor of plaintiffs must be upheld.

Affirmed.

CLARK C.J. (dissenting).

The plaintiffs took out claim and delivery claiming to be owners of a chattel mortgage on an automobile. The defendant executed a replevy bond denying the right of plaintiffs to recover possession of the car, which, while acting in his official capacity as sheriff of Rockingham county, he had seized while it was being used for transporting, in violation of law, 40 gallons of whisky, and for the further reason that one of the occupants of said car at said time had been tried and convicted for the unlawful transportation of whisky, and the other was unidentified and had escaped. Pending the trial of the plaintiff's claim the automoble in question, which was stored in a local garage, was accidentally destroyed by fire along with the garage and other cars therein, and there was no evidence that there was any negligence on the part of the sheriff or the garage. The defendant sheriff had seized the car and held the same pending the time when he should ascertain who the man was who made his escape at the time of the seizure, or until its title was decided by the court, as the law of this state directed he should do. The car was destroyed by fire, a circumstance beyond the control of the sheriff, and admitted in the "facts agreed," due to no fault of his. He was not the owner of the car, and, in giving the forthcoming bond as required by the writ served on him, he did not set up ownership. This had passed to the state of North Carolina upon the conviction of the occupant for transporting whisky, subject only to any interest of a third party.

This is not a case where the possession of the defendant was wrongful ab initio, for it was the duty of the defendant sheriff, acting under mandate of law, to retain possession of the automobile, first, for use as evidence in the trial of the criminal action against the man who escaped, and, second, to be turned over to the state under the judgment of the court confiscating the car to the state, if it should so order.

The case was submitted upon an agreed state of facts, which is silent as to whether C. Vance Smith, the owner of the car, had guilty knowledge of the use to which the car was being put. There was no serious contention that he did not have this guilty knowledge, and the case turns solely upon the rights of the mortgagee, the Motor Company. It was the duty of the defendant sheriff to retain possession of this car; for, in case the mortgagees sustained their claim, then the excess in value over and above the mortgage would belong to the state. The defendant sheriff was not the owner of the property in question, nor did he claim to be. He was holding the car as the law commanded him to do, to be turned over upon the final determination of the criminal action to the owners--the mortgagee or the state--as the judgment of the court might determine. This case is therefore entirely different in principle from Randolph v. McGowans, 174 N.C. 203, relied upon by the plaintiffs, which was an action between individuals over a cow, no official duty being imposed upon the defendant.

It would be "hard lines" upon the sheriffs of the state, when...