Wise v. State

85 So. 266 | Ala. | 1920

The order of the trial court forfeiting the car was made "subject to the lien of Lee Wise," the petitioner, and provided that out of the proceeds of a sale of the car, after the payment of all costs and expenses, and one-fourth of the amount to the officer making the seizure, the balance be paid to said Wise as a credit on his mortgage against the owner of the car. The judgment therefore discloses that, to the satisfaction of the trial judge, petitioner had sufficiently acquitted *85 himself as a bona fide mortgagee, innocent of and without fault as to any illegal use of the car, and therefore entitled to the protection of the court in the assertion of a superior claim thereto.

The forfeiture to the state therefore, under these circumstances, could only be the right of the mortgagor or owner of the car in and to the property seized [section 13, Acts 1919, p. 6; State v. Crosswhite, 84 So. 813,1 present term], which, in the instant case, was his equity of redemption. The property embraced in the mortgage was of less value than the amount concededly due thereon, and the mortgagee being held innocent was entitled to protection as to the whole of the property and not to a part thereof, as is the result of the judgment rendered. As previously stated, all that is left for sale in such a case is the right of the offending person, the owner here, in and to the car. This right is but an equity of redemption, and whether of any value is not a matter with which we are here concerned; but, in any event, this equity alone is what, under such conditions, is to be forfeited and condemned, and out of a sale of which the costs and expenses are to be deducted. If such equity brings nothing at the sale, then there is no fund out of which can be carved such costs. In this manner the superior right of an innocent mortgagee is protected and unaffected by the proceedings.

The judgment will therefore be reversed, and the cause remanded that the proper order may be entered.

Reversed and remanded.

ANDERSON, C. J., and SAYRE and BROWN, JJ., concur.

1 203 Ala. 586.