Annotate this Case

75 S.E.2d 237 (1953)

237 N.C. 352


No. 666.

Supreme Court of North Carolina.

March 18, 1953.

*239 Elton Edwards, Greensboro, for plaintiff, appellant.

G. C. Hampton, Jr., Greensboro, for defendants, appellees.

JOHNSON, Justice.

Chapter 1, Section 6, Public Laws of 1923, as amended, now codified as G.S. § 18-6, prescribes the procedure under which vehicles used in transporting liquor in violation of law may be seized and confiscated under State law.

Under the provisions of this statute the owner of a seized vehicle may intervene in the forfeiture proceeding and obtain possession of the vehicle by showing that it "was used in transporting liquor without his knowledge and consent". Similarly, the holder of a lien on a seized vehicle may intervene and, by showing that the lien was "created without the lienor having any notice that the carrying vehicle was being used for illegal transportation of liquor," require that the proceeds derived from the sale of the vehicle be applied toward the satisfaction of the lien.

In the case at hand the gravamen of the defendants' counterclaims is that the conduct of the plaintiff in putting the automobile to use in the liquor traffic under circumstances leading to seizure and forfeiture under G.S. § 18-6, followed by failure on his part to notify defendants of the seizurethey being without notice from other sourcesresulted in failure of the defendants to intervene seasonably in the forfeiture proceeding and protect their rights, and was a willful, criminal tortious course of conduct as against the defendants, arising subsequent to and independent of the execution of the conditional sale contract, entitling the defendants to recover damages against the plaintiff to the extent of their losses.

Conceding as we may that such conduct on the part of a conditional sale vendee may be made the basis of an independent tort action, 27 Am.Jur., Infants, Sections 92 and 94; 43 C.J.S., Infants, § 89; Vermont Acceptance Corp. v. Wiltshire, 103 Vt. 219, 153 A. 199, 73 A.L.R. 792; Collins v. Norfleet-Baggs, 197 N.C. 659, 150 S.E. 177; Annotation: 127 A.L.R. 1441, p. 1449 (the facts in Greensboro Morris Plan Co. v. Palmer, 185 N.C. 109, 116 S.E. 261, relied on by plaintiff, being distinguishable), even so, recovery may not be sustained where the crucial facts found by the court merely show, as in the instant case, (1) a seizure for cause by the State, and (2) failure of the lienee to notify the lienor of the seizure.

In order to prevail in such circumstances, it must be made to appear substantially (1) that the lienor was without knowledge or notice of the forfeiture proceeding from any source and by reason thereof failed to intervene within the time allowed therefor; (2) that the lienor was without knowledge or notice that the automobile was being used for the illegal transportation of liquor, so that, if he had intervened, he would have been entitled as a bona fide lienor to the proceeds of sale for application on his lien debt; and (3) the extent of the resultant loss sustained by the lienor.

In the instant case the findings of fact are silent respecting these vital factors. In gist, the findings are: That the plaintiff entered a plea of guilty to the charge of transporting intoxicating liquor; that the automobile was seized and ordered sold, and was thereafter sold; that the plaintiff did not notify either defendant of the arrest or seizure until weeks after the sale. It is manifest that the findings do not support the judgment. And this is so even if we glean from the conclusions of law such of them as might be termed findings of fact.

Therefore the plaintiff's exception to the judgment, which challenges the sufficiency of the findings of fact to support the judgment, Medical College of Va. v. *240 Maynard, 236 N.C. 506, 73 S.E.2d 315; In re Sams Estate, 236 N.C. 228, 72 S.E.2d 421; Sprinkle v. City of Reidsville, 235 N.C. 140, 69 S.E.2d 179, must be sustained. It is so ordered. This works a reversal of the judgment as to the counterclaims, and necessitates a remand of the cause for further hearing and proceedings in respect to the issues raised by the counterclaims. See Benbow v. Robbins, 72 N.C. 422; Raleigh Banking & Trust Co. v. Safety Transit Lines, 200 N.C. 415,157 S.E. 62; 31 Am.Jur., Jury, Sec. 48; Annotation: 106 A.L.R. 203; Erwin Mills v. Textile Workers Union, 235 N.C. 107, 68 S.E.2d 813.

In this Court the plaintiff demurred ore tenus to each counterclaim for failure to state a cause of action. We are of the opinion and so hold that the demurrers should be overruled. The counterclaims, when construed with that degree of liberality required, present facts sufficient to constitute causes of action. Scott v. Aetna Life Insurance Co., 205 N.C. 38, 169 S.E. 801, and cases cited. Besides, the demurrers are defective in form for failure to specify wherein each counterclaim fails to state facts sufficient to constitute a cause of action. Wilson v. Horton Motor Lines, 207 N.C. 263, 176 S.E. 750, and cases cited.

The cause will be remanded for further proceedings in accord with this opinion.

Reversed and remanded.

DEVIN, C. J., took no part in consideration or decision of this case.