Armington & Sons v. State

Jenkins, J. (After stating the foregoing facts.) The respondents claimed title to the automobile in controversy under a title-retention contract executed- in the State of Florida, which had never been recorded; and set up in their intervention that under the statutes of Florida it was not necessary that such a contract be recorded in order to be valid as against all parties. Such seems to be the law of Florida, for the Supreme Court of that State, in Campbell Co. v. Walker, 22 Fla. 412 (1 So. 59), held as follows: “1. An agreement in writing to sell personal property, the title to which is reserved by the seller until the purchase-money is paid by the buyer, is a conditional sale, and does not vest title in the buyer until the performance of the condition, to wit, the payment of the purchase-money, notwithstanding that at the time of making said agreement possession of the property is delivered by the seller to the purchaser. 2. Neither the act of the legislature of January 30, 1838, nor of January 8, 1853 (MeClell. Dig. p. 765, §§ 1, 2), requires such an instrument to be recorded. . . 4. An agreement such as is described in the first headnote is valid as against subsequent creditors and bona fide purchasers for valuable consideration without notice.” That case was cited and followed in American Process Co. v. Florida White Pressed Brick Co., 56 Fla. 116 (47 Sou. 942, 16 Ann. Cas. 1054). And in Georgia the fact that such a title-retention contract has not been recorded will not defeat the claim of title based thereon by a respondent in a proceeding of this sort. See Shrouder v. Sweat, 148 Ga. 378 (96 S. E. 881); Whites v. State, 23 Ga. App. 174 (98 S. E. 171). The trial court therefore erred in finding and adjudging that the claim of title of the respondent in this case to the automobile in controversy be "denied and disallowed.” Furthermore, the petition to condemn alleges that the automobile in question was "a vehicle and conveyance used on the public roads and private ways of said State, in said county, and at the time said automobile was seized said automobile was being used in conveying between 150 and 175 pints of whisky, contained in pint bottles, said whisky being liquors and beverages the sale [79] and possession of which, is prohibited by law.” The portion of section 20 of the act of 1917 material to a consideration of this case is as follows: “All vehicles and conveyances of every kind and description which are used on any of the public roads or private ways of this State ... in conveying any liquors or beverages, the sale or possession of which is prohibited by law, shall be seized by any sheriff or other arresting officer, who shall report the same to the solicitor of the county, city or superior court having jurisdiction in the county where the seizure was made, whose duty it shall he within ten days from the time he received said notice to institute condemnation proceedings in said court by petition, a copy of which shall be served upon the owner or lessee if known, and if the owner or lessee is unknown, notice of such proceedings shall be published once a week for two weeks in the newspaper in which the sheriff’s advertisements are published. If no defense is filed within thirty days from the filing of the petition, judgment by default shall be entered by the court at chambers, otherwise the case shall proceed as other civil cases in said court. Should it appear upon the trial of the case that said vehicle, conveyance, boat or vessel was so used with the knowledge of the owner or lessee, the same shall be sold by order of the court after such advertisement as the court may direct.” In our opinion it is altogether possible that the vehicle had been, and even more probably would soon have been, used in an illegal manner upon the highways of this State; but the statute, being summary in its nature, must be strictly construed (Phillips v. Stapleton, 23 Ga. App. 303, 97 S. E. 885); and after a careful examination of the evidence we are of the opinion that the evidence as we find it is legally insufficient to authorize the judgment rendered, and that it failed to show that the automobile had been or was being used upon the highways for the purpose and in the manner prohibited by the statute. The sum total of the evidence of the officer who made the seizure is to the effect that the automobile, when found, was not upon a public highway or a private way, but near a vacant house, and that he had not seen when or by whom it had been placed there, but that when thus found it contained between 150 and 175 pints of whisky. Thus, it was not shown that the automobile was “used” on any of the “public roads or private ways” of this State “in conveying” any of the [80] prohibited liquors. While the officer did testify that he saw where the -tracks of the automobile led from a public highway to the place where it was found near a vacant house, it is not shown that while on the public highway it contained the whisky found therein. It is just as reasonable to presume that it did not, and that it was brought there for the purpose of receiving the whisky at that point, to be later conveyed to some other point. If so, the seizure was premature. The verdict and judgment, being thus without evidence to support it, is contrary to law. Judgment reversed. Wade, 0. <7., and Luke, J., concur.