37 So. 2d 644 | Ala. | 1948
This is an appeal from a decree ordering the condemnation and sale of an automobile for transporting prohibited liquor from one point in the state to another point in the state and denying the claim of the Commercial National Bank. The Commercial National Bank intervened by petition and alleged the existence of a mortgage held by it upon the car. The respondent A. A. McElroy was the owner of the car. The facts are admitted which authorized the condemnation of the car, the car being seized while it was being used by A. A. McElroy to transport prohibited liquors in Calhoun County. The only question presented here is whether the Commercial National Bank is entitled to the allowance of its claim upon the car.
In such a situation the burden is upon the intervener (1) to establish its superior claim and (2) that it had no knowledge or notice of the illegal use of the car and could not by reasonable diligence have obtained notice of the intended illegal use so as to prevent such use. Anderson v. State,
The car was sold by the Alabama Motor Company on November 13, 1947, to A. A. McElroy. The sale was financed at that time by a mortgage loan on the car made by the Commercial National Bank to the purchaser. These concerns were located in Calhoun County and neither had any actual notice or knowledge that A. A. McElroy had violated the prohibition laws or intended to use the car for illegal purposes. They both had known A. A. McElroy through their officers for a number of years. These officers testified to lack of any actual knowledge or notice of his violation of the prohibition law. According to them both companies had had previous dealings with A. A. McElroy and had found him responsible and trustworthy. It was shown that A. A. McElroy lived in Cleburne County where he was engaged in operating a feed mill.
In Briscoe Motor Car Co. v. State,
We think it clear that under the evidence so far outlined, the intervener was entitled to its claim. With the evidence before the court as so far outlined, the state undertook to show that the claimant was culpably negligent in failing to make inquiry as to the purchaser's reputation and in order to show such culpable negligence on the part of the claimant, the state attempted to show that the purchaser had a bad reputation in the community as a bootlegger at the time the car was purchased. Hartzog-Ganey Motor Co. v. State,
Two officers of Calhoun County testified that A. A. McElroy had such bad reputation. When their testimony is analyzed, however, it is obvious that they failed to testify as to his general reputation but only to a reputation limited to police officers and their confidential sources of information. It is sufficient to say that for this reason the testimony is not sufficient. State ex rel. Biggs v. Frazier, supra; Hartzog-Ganey Motor Co. v. State, supra. It may be added that the proof showed that A. A. McElroy had a good reputation in Cleburne County where he lived and worked. See Hartzog-Ganey Motor Co. v. State, supra; Wright Motor Co. v. State,
Reversed and rendered.
BROWN, FOSTER and LAWSON, JJ., concur.