The proceeding is in equity for the condemnation of an automobile shown to have been used by the owner for the transportation of contraband liquors. The Gadsden Loan Trust Company intervened as claimant, and showed that the car in suit was sold to one J. M. Jackson by the Attalla Motor Company, the vendor taking a mortgage note for the unpaid purchase money; and that said security was by the payee transferred for a valuable consideration to the claimant. The trial court found that the car was subject to condemnation, but held in favor of the claimant, and adjudged that its lien is superior to the state's right of confiscation.
The evidence does not show that the claimant made any investigation as to the purchaser's reputation, or as to his intentions in regard to the use of the car. Conceiving that this shows negligence on the part of the claimant as a matter of law, the state appeals and asks for a reversal of the decree.
One witness for the state testified to the bad reputation of the vendee, Jackson, as a "wildcatter and bootlegger," and my associates are of the opinion that the claimant's failure to make inquiry as to Jackson's reputation — the fact of his bad reputation being presumptively accessible to the claimant — was negligence which must result in the forfeiture of the car. Edwards v. State (Ala. Sup.) 104 So. 255.1 My own conclusion would have been otherwise, in which Mr. Justice SAYRE concurs.
It results that the decree of the trial court must be reversed, and a decree will be here entered denying the claim of the intervener, and ordering the condemnation and sale of the motorcar in suit, as provided by law.
Reversed and rendered.
ANDERSON, C. J., and GARDNER, THOMAS, MILLER, and BOULDIN, JJ., concur.
SAYRE and SOMERVILLE, JJ., dissent.
1 213 Ala. 122.