It appears to me that the statute under consideration (Sec.48-402-b) was never intended to have application to the immediate parties (vendor and vendee) to a bona fide sale of a motor vehicle. The statute is clearly an "Anti-Theft Act."
A motor vehicle is property. The right to own and possess such property carries with it the right to dispose of it. While the legislature may regulate the mode of proof of ownership, it may not deprive the thing of its character as property.
"In other words, if a thing really is property, the legislature by saying it shall not be considered such cannot in fact deprive it of the character and quality which constitute *Page 644 it property." (Hard v. Boise City Irr., etc., Co., 9 Idaho 589,600, 76 P. 331.)
I here reiterate what was said in the last cited case as follows:
"Again, it seems to me that before the courts can be justified in denying to any person the right to voluntarily sell and dispose of any property right he may possess, they should find such prohibition clearly expressed in law. It is a fundamental principle that every citizen has the inherent right to dispose of all his acquisition (1 Blackstone'sCommentaries, 138,) and unless that inherent right be expressly abridged by law, it should not be done by the courts."
Illinois has a statute substantially the same as ours in reference to certificate of title to motor vehicles. In the comparatively recent case of Smith v. Rust, 33 N.E.2d 723, 726, the court construes the statute and reviews a number of cases arising under the Uniform Motor Vehicle Anti-Theft Act and says:
"From an examination of the authorities, we are disposed to hold it to be the general and better considered rule, having in view the vast importance and volume of the legitimate traffic in automobiles within this state and bona fide contracts in relation thereto, that the Illinois penal statutes regulating the manner of transferring or recording titles are to be strictly construed and are not by their provisions intended to prohibit or render invalid as between the parties contracts involving the bona fide sale and delivery of motor vehicles. The penal statute, while punishing violation of any of its terms in relation to the sale, transfer, delivery and registration of motor vehicles, a business in itself entirely legitimate and neither unlawful nor against public policy, is intended, as its title and context implies, to prevent theft and certain unlawful actions and practices and not to prevent or render illegal and legitimate sale, transfer and delivery of motor vehicles."
Even if the sale here involved be held void, as indicated by Justice Givens' opinion, it nevertheless seems clear to me that the part of the decree, denying plaintiff compensation for the use of his truck during the time of its detention by defendant, is inconsistent with the other part of the decree, directing the return of the truck to plaintiff and adjudging him the owner thereof. The fact that Lux "voluntarily surrendered" possession of the truck to defendant, *Page 645 "to be used by defendant pending delivery of a new truck by the company," should not be held to run indefinitely and allow the defendant to use, and possibly wear out, the truck pending the continuance of the intervening order of the government freezing sales and transfers of such property. The fact, that the owner of a truck would permit the temporary use by a prospective purchaser of his property, pending consummation of the sale, can not reasonably be construed to extend indefinitely during the period of an intervening cause, beyond the control of the parties to the contract.
I am impressed with the feeling, that, if the sale is to be voided, plaintiff (cross-appellant) should be allowed reasonable compensation for the use of his truck from the date of the freezing order until the date of the trial.
While the would-be purchaser came lawfully into possession of the property, it was never intended that he should use it indefinitely without compensating the owner for the use thereof, in the event a sale and transfer was not consummated. Moreover, the delivery of a certificate of title was no part of the consideration for the sale of the property but merely the legal requirement as to the nature of proof essential to establish a valid sale. (Ludwig v. Steger, 99 Cal. App. 235,278 P. 494 (5th Syll.); Swank v. Moisan, 85 Ore. 662,166 P. 962, 964; Sevier v. Roberts, (Cal.) 126 P.2d 380, 386.)