after stating the case as above:
This proceeding was brought originally under the Prohibition Act, S. L. 1915, p. 275, against certain intoxicating liquors, the avowed purpose being to defeat any property rights therein, and to obtain a rule of court ordering them destroyed. Duncan and Noble were made defendants because they claimed to own the liquor that was taken from their possession. The prohibition act, which took effect January 1, 1916, is controlling.
Designating the parties, as in the court below, plaintiffs and defendants, plaintiffs claim the liquor was kept for sale, and they ask to have the property rights therein declared forfeited, and have it destroyed under a court Order. Plaintiffs also contend, though the proceeding is to declare a forfeiture, that no action, suit or legal proceeding is necessary to work a forfeiture; that the statute itself works a forfeiture immediately upon the happening of the event. The rule of forfeiture contended for no doubt is true, but how shall it be known that the event happened, or that forfeiture has occurred unless the acts occasioning the forfeiture appear in court, or in some legal manner or proceeding.
In McConathy v. Deck, 34 Colo. 461, 466, 83 Pac. 135, 4 L. R. A. (N. S.) 358, 7 Ann. Cas. 896, and the many citations and quotations therein, the principle is announced that forfeiture takes place immediately, under the statute, without any proceeding to declare a forfeiture, upon the happening of the event; still, in all forfeiture cases that we have been able to examine, the facts constituting the forfeiture were made to appear in court, before the forfeiture *519could be pronounced or made effectual. The owner of the property must be afforded the means of demanding and enforcing his constitutional right to defend and protect his property against forfeiture. In all cases where the rule has been announced, it has been in court, where the owner had the opportunity to defend his property rights. If we concede section 20 of the statute warrants such a proceeding, the property rights of defendants could only be defeated by proof, on the trial, of facts constituting a forfeiture. A forfeiture, under the circumstances, could not be declared upon default without any evidence.
Plaintiffs claim they were not obliged to make a prima facie case, or to introduce any evidence of forfeiture in the first instance, because defendants, by their pleadings, made a prima facie case for plaintiffs, entitling them to judgment on the pleadings, but this contention is untenable. Noble’s affidavit treated as a pleading- put in issue the alleged facts, it set out his version of the transaction, the effect of which was a denial. Duncan’s answer was a denial except he ad.mitted the liquor belonged to him, and that it was seized and taken from his possession. The cross-complaint set out his account of the transaction, and amounts, like Noble’s affidavit, to a denial. It added nothing and was superfluous — because he styled it a cross-complaint is of no consequence. Both Duncan and Noble attacked the form of procedure, and denied the alleged facts which it is claimed forfeited the property rights. No proof was offered, and defendants were given no opportunity to defend whatever property right they had in the liquor. To destroy property taken from the possession of defendants, and which they claim to own, by pronouncing judgment for forfeiture on the pleadings without evidence, was without authority of law.
It was not an adversary proceeding, and possibly pleadings on behalf of defendants were unnecessary, but they were permitted to plead they purchased the liquor before the state went dry, and stored it in a room in Duncan’s pri*520vate residence, no part of Which was connected with, or used as a store, shop, hotel, boarding house, rooming house, or place of public resort, for their own personal and private use. The motion for judgment on the pleadings admitted the truth of these allegations. If true, it came within the exception mentioned in the statute, and the amount seized,, was not, on account of the exception, prima, facie evidence of a violation of the statute. The burden was upon plaintiffs to show by evidence on the trial that the liquor was kept for unlawful purposes, and judgment on the pleadings was wrong.
For this reason the case will be reversed and remanded.
2. The proceeding, as originally brought, is an action in rem ag’ainst certain liquors, but it seems the court below and the parties at the trial treated and tried it as a replevin suit. We express no opinion as to the propriety of such a course. If the c&se is re-tried, it will be open for the parties and the court to make up and try the issue as they may be advised. But, in view of such an event, we feel we should express an opinion on certain points that may arise, to aid the court in the future trial of the case.
If it is tried as it was brought, and the evidence warrants the finding that defendants have no property rights therein, on account of forfeiture under the statute, then, whether the seizure of the liquor was legal or illegal, or what plaintiffs did with it thereafter, or what the court orders done with it, is of no concern to defendants, because they have no property rights therein. But it is only in the event that the evidence warrants a finding that the facts necessary to constitute a forfeiture are true, that the property rights in the liquor are forfeited. Therefore, on the trial of this issue, plaintiffs have the burden of proving from all the evidence in the case the allegations of forfeiture. If defendants’ property rights are forfeited, then they have no further interest in the liquor, and all other questions, except forfeiture, are immaterial.
*521If the case is converted into and tried as a replevin suit without reforming the pleadings, then Duncan and Noble should be treated as plaintiffs, and Duncan’s answer and Noble’s affidavit should be treated as complaints in replevin. Plaintiffs, in that event, should be treated as defendants, and the complaint should be treated as an answer in replevin, and the parties would be entitled to a jury trial as in any replevin suit. In the trial of such an issue, if the whole evidence warrants a finding of fact that plaintiffs’ property rights have been forfeited by the statute, they cannot recover in replevin because they have no title and right of possession; they must recover upon the strength of their own title and not upon the weakness of defendants’ title. The defense of forfeiture of title raised in such a case would be a good defense in replevin.
If the evidence on the trial shows the liquor was placed in a room in Duncan’s private residence (prior to the time the act went into effect, and was there when it went into effect) no part of which was in connection with or used as a store, shop, hotel, boarding house, rooming house or place of public resort, then, on account of the exception mentioned in the statute, it cannot be said that the amount was prima, facie evidence under the statute that it was kept or used for the purpose of violating the statute.
Because Noble did not have the 122 bottles of liquor taken from his buggy labeled— “This package contains intoxicating liquor” — did not, under the circumstances of this case, work a forfeiture under the statute of whatever title he had in the liquor.
Reversed.
Decision en banc.
Mr. Justice Bailey not participating.
Mr. Justice Teller and Mr. Justice Allen agree in the conclusion of reversal only.