United States v. One Hudson Hornet Sedan, Civ. A. No. 284.

• Decision Date: 05 February 1953
• Docket Number: Civ. A. No. 284.
• Citation: 110 F. Supp. 41
• Court: U.S. District Court — Western District of Virginia
• Parties: UNITED STATES v. ONE HUDSON HORNET SEDAN.

110 F. Supp. 41

UNITED STATES v. ONE HUDSON HORNET SEDAN.

Civ. A. No. 284.

United States District Court W. D. Virginia, Danville Division.

February 5, 1953.

Howard C. Gilmer, Jr., U. S. Atty., and R. Roy Rush, Asst. U. S. Atty., Roanoke, Va., for the Government.

French H. Conway, Clement, Conway & Winston, Danville, Va., for claimant.

BARKSDALE, District Judge.

This action, by stipulation, has been submitted to the court without a jury upon the libel of information, the petition of claimant, Aubrey K. Ferrell, certain stipulated facts, and the written statements of witnesses for both the United States and the petitioner, to be taken as their evidence. I therefore find the facts specially, and state separately my conclusions of law, as follows:

Findings of Fact.

Prior to February 8, 1952, the automobile here in controversy was the property of claimant, Aubrey K. Ferrell, a certificate of title having theretofore been issued to him by the Motor Vehicle Commissioner of the Commonwealth of Virginia, and was used as a demonstrator in and about the business of the Ferrell Motor Car Corporation, of which claimant was an officer. On February 8, 1952, a salesman of Ferrell Motor Car Corporation, within the scope of his authority, entered into an agreement with one Eugene B. Mann, Jr., and his wife, for the purchase and sale of said automobile. The purchasers delivered their used automobile, which had been purchased from the Ferrell Corporation several years before, in lieu of a down payment, and executed a conditional sales contract and an application for credit on forms furnished by Commercial Credit Corporation, and these papers were forwarded from the Ferrell Company's office at Danville to the Roanoke office of Commercial Credit Corporation. The said automobile was delivered to Eugene B. Mann, Jr., and both he and the agent of the Ferrell Company considered that a sale had been made. However, claimant, Aubrey K. Ferrell, was away from home, so that he, the owner of the vehicle, did not endorse "an assignment and warranty of title upon the reverse side of the certificate of title of the motor vehicle, * * *", nor did he "deliver the certificate to the purchaser or transferee at the time of delivering the motor vehicle, * * *", as required by Section 46-84 of the Code of Virginia 1950, so that it was, of course, impossible for Mann to "immediately forward the certificate to the Division" of Motor Vehicles as required by Section 46-85 of the Code.

Eugene B. Mann, Jr., had no record or reputation for violation of either State or Federal laws pertaining to liquor, prior to January 1, 1952. On that date, he went into business with his sister in the operation of a restaurant and filling station known as Bradley's Lunch, at and from which whiskey had been sold illegally for a considerable period of time.

Very soon after January 1, 1952, both Federal and State officers began to receive reports that Eugene B. Mann, Jr., was illegally selling whiskey at Bradley's Lunch. The services of an under-cover agent of the Virginia A. B. C. Board were procured, and on three occasions this agent purchased from Mann at Bradley's Lunch whiskey upon which the federal tax had been paid, in each instance the whiskey at the time of the sale having been procured by Mann from the automobile here in question and delivered to the purchaser. On February 11, 1952, a search was made by State officers under the authority of a state search warrant, and five pints of whiskey upon which the federal tax had been paid, were found in the said automobile. Mann was arrested and the said automobile was seized. On February 27, 1952, Mann entered a plea of guilty in the State court to violation of the Virginia A. B. C. Act in making three separate sales of whiskey. I find as a fact that the said Eugene B. Mann, Jr., was guilty of using the said automobile to facilitate and carry on the business of a retail liquor dealer, and wilfully failed to pay the special federal tax as required by law, and thereby used the said vehicle in violating the Internal Revenue Laws of the United States, to wit, Section 3253 of the Internal Revenue Code, 26 U.S.C.A. § 3253. One Ford, etc., v. United States, 5 Cir., 164 F.2d 1020.

I further find as a fact that prior to January 1, 1952, said Eugene B. Mann, Jr., had no reputation for violating any liquor laws; that thereafter, until February 11, 1952, the said Eugene B. Mann, Jr., did have a reputation for violating the liquor laws, which reputation was known to certain state and federal law enforcement officers, but that he did not have such a reputation which was generally known in the community.

I further find that the said Eugene B. Mann., Jr., had no record of conviction for violation of any liquor law prior to February 27, 1952.

I further find as a fact that the claimant, Aubrey K. Ferrell, has an interest in the said automobile, as owner thereof, which he acquired in good faith, and that he, his salesman Goodson, and everyone else connected with Ferrell Motor Car Corporation, "had at no time any knowledge or reason to believe that it (the said automobile) was being or would be used in the violation of laws of the United States or of any state relating to liquor," after the said automobile was delivered to Eugene B. Mann, Jr., and that it does not appear that the interest asserted by the claimant, Aubrey K. Ferrell, arises out of, or is in any way subject to, any contract or agreement under which any person, having a record or reputation for violating laws of the United States or of any state relating to liquor, has a right with respect to said automobile.

Conclusions of Law.

Upon the facts as set out above, my conclusions of law are as follows:

The prayer of the petition filed by the claimant is for relief against forfeiture, and asserts that at the time of the seizure of the automobile, a sale had been consummated, with the balance of the purchase money being secured by a conditional sales contract. I have no doubt that the circumstances require a forfeiture. However, as will presently appear, I am satisfied that the sale had not been consummated and that the claimant occupies the legal status of owner. Therefore, I feel that in the interests of justice I should treat said petition against forfeiture as a petition for remission or mitigation. Busic v. United States, 4 Cir., 149 F.2d 794.

Section 46-84, Code of Virginia 1950, requires the owner of a motor vehicle, transferring his title thereto, to endorse an assignment and warranty of title upon the reverse side of the certificate and to deliver the certificate to the purchaser at the time of delivering the vehicle. Section 46-85 requires the purchaser to immediately forward the certificate, so endorsed,...