This appeal is by the state from a decree of the circuit court condemning and ordering the sale of a Paige automobile under the provisions of the act approved January 25, 1919 (Acts 1919, p. 6, § 13).
The car was seized by the sheriff of Russell county, in the city of Girard, on the 8th day of March, 1919, while in the possession of one J. C. Collins, who was using it for the transportation of prohibited liquors, in violation of the statute.
After the seizure of the car by the sheriff, and the filing of the bill by the state for its forfeiture and condemnation for sale, Purvis intervened, asserting that he had a bona fide claim thereto, and, on final hearing on pleadings and proof, the court entered the decree — from which this appeal is taken — directing the sheriff to sell the car, and to apply the proceeds of the sale as follows:
"First. To the payment of the expenses in this cause including court costs, cost of advertisement, the costs of seizure and of keeping the property, pending this proceeding.
"Second. There shall be paid to L. L. Purvis, claimant, the sum of $949, with the interest thereon accruing from the 3d day of July, 1919, to the date of sale, if there remains a sufficient amount from the proceeds of sale after the payment of the expenses in this cause, to pay said $949 and accrued interest. If the proceeds of sale do not amount to enough to pay the expenses in this cause as above provided, and the said sum of $949 and accrued interest, then after said expenses have been paid as hereinabove provided, the whole remainder of the proceeds of sale shall be paid over to the said L. L. Purvis.
"Third. If said automobile shall sell for a sum more than enough to pay the expenses of this cause, and the said sum of $949 and accrued interest as above provided, then after said sums are so paid, one-fourth of the remainder of proceeds shall be paid to H. R. Ragland, sheriff of Russell county, Ala., the officer making the seizure, furnishing the proof, assisting in the condemnation case, and who makes the sale under this decree, and the remainder of the proceeds of sale shall be paid into the state treasury, as provided by law."
The facts disclosed by the evidence noted on submission, consisting of the pleadings, an "agreement as to facts," and the report of the register on reference embodying the depositions of the claimant, are without dispute.
Collins acquired the car under a written contract of conditional sale from one Kelly on the 3d day of October, 1918, by which Kelly retained the title to the car as a security for the purchase money; the parties then being residents of the state of Georgia. The price agreed to be paid by Collins was $1,550; $650 of which was to be paid in cash and the balance was to be paid in deferred payments of $75 each, payable monthly. On the day the conditional sale was made and the contract executed, Kelly transferred the contract to the Muscogee Bank, and the same was filed for record in the office of the clerk of the superior court of Muscogee county, *Page 45 Ga., on the 4th day of October, 1918. The bank continued the holder of said contract up until March 12, 1919, after the automobile was seized by the sheriff of Russell county, when it was transferred back to Kelly, and on the same date transferred by Kelly to Purvis, the claimant, who filed it for record in Russell county on the 13th day of March, 1919. Collins some time in January, 1919, and within three months of the recording of the conditional sale contract in Russell county, moved his residence to Alabama. Purvis at the instance of Collins and without any security therefor, other than the promise by Kelly who then had no title to the paper that he would transfer the conditional sale contract to him, paid the installments falling due October, November, and December, 1918, and after the seizure, on the request of Mrs. Collins, paid the balance due on the contract. The agreement as to facts recites:
"That the unlawful use to which said automobile was put by the said John C. Collins was without the knowledge or consent of the said L. L. Purvis or of any one under whom he claims title."
From this statement of facts, it is manifest that at the time of the seizure of the automobile by the sheriff neither Purvis nor Kelly had any claim on or title to the automobile. The payments previously made by Purvis were, according to his own statement, made at the instance of Collins and without any security. Purvis was under no obligation to pay the debt represented by the conditional sale contract, but made these latter payments at the instance and request of Mrs. Collins. These facts clearly tend to rebut the bona fides of the claim of Purvis, and to show that he is a mere volunteer in the transaction to save the interest of Collins. Maples v. State,203 Ala. 153, 82 So. 183.
It is not enough for the intervener or claimant to show that the use to which the vehicle was put was without hisknowledge or consent, or the knowledge or consent of those under whom he claims. He must show that he and those under whom he claims did not have knowledge or notice, and could not, by the exercise of reasonable diligence, have obtained knowledge or notice of the unlawful use of the vehicle. State ex rel. Tate v. One Lexington Automobile, 84 So. 297;1 State v. Crosswhite, 203 Ala. 586, 84 So. 813; State v. Hughes,203 Ala. 90, 82 So. 104.
The evidence does not meet this burden of proof, and hence does not show that Purvis had, within the meaning of the law, "a superior title or claim" to the property in question.
The decree of the court below, in so far as it directs the payment of a part of the proceeds of the sale to Purvis, will be corrected so as to direct the payment of the proceeds remaining after the costs and expenses incident to the seizure, including the sheriff's commission or fee, into the state treasury as required by law.
Corrected and affirmed.
ANDERSON, C. J., and McCLELLAN, SOMERVILLE, and THOMAS, JJ., concur.