Opinion
33753.
DECIDED OCTOBER 4, 1951.
Condemnation of automobile; from Floyd Superior Court — Judge Nichols. June 19, 1951.
Hicks Culbert, for plaintiff in error.
John W. Davis, Solicitor-General, contra.
1. Secondary parol evidence as to the contents of a written instrument is sufficient to establish the contents of such instrument where it is admitted without objection.
2. "It is not necessary that the lien or mortgage upon which the intervenor relies be properly recorded in order that the lienee or mortgagee may assert it as evidence of his right to intervene in a proceeding to condemn the mortgaged vehicle." State of Ga. v. McRee, 83 Ga. App. 284 (3) ( 63 S.E.2d 348).
3. The filling in of a blank after the execution of a contract, the parties thereto agreeing to the act, does not vitiate the instrument.
DECIDED OCTOBER 4, 1951.
The Solicitor-General of Floyd County filed a petition, in Floyd Superior Court, to condemn a 1946 Ford coupe, the ownership of which was alleged to be unknown, but which was, on June 28, 1949, operated by one F. E. Deaton, said vehicle being used at the time for the transportation of illegal liquor. To this proceeding the plaintiff in error, B. F. Cummings, filed an intervention, alleging that he was the owner of said vehicle under a bill of sale to secure debt, a certified copy of which was attached to and made a part of the intervention, and further alleging that, if the said vehicle was used for the transportation of illegal whisky, it was done without the knowledge or consent of the owner. The attached certified copy of the bill of sale contained the same motor number as that of the automobile sought to be condemned. By amendment the intervenor showed that the bill of sale as originally recorded was executed by inadvertence with the motor number omitted, but that the automobile sought to be condemned is in fact the same automobile as that referred to in the bill of sale.
Upon the trial of the case the undisputed testimony was to the effect that the intervenor had no knowledge of and did not consent to or connive in the transportation of illegal liquor in the automobile. The testimony was also undisputed: that Cummings, upon the recommendation of his brother, agreed to lend Deaton $800 on the Ford coupe which Deaton had just purchased, provided Deaton gave as additional security a 1946 Dodge coupe in his possession; that Deaton exhibited to Cummings a receipt from Wade Motor Company; that the bill of sale from Deaton to Cummings was prepared from this receipt, the motor number on which was illegible and was therefore omitted; that Deaton then received the money from Cummings and paid for and accepted delivery of the automobile, but received his own bill of sale subsequently by mail; that he gave Cummings permission to insert the motor number in the bill of sale to secure debt; and that this was done after the present proceedings were instituted. A total of $137 had been paid on the $800 note accompanying the bill of sale; the remainder was past due.
The above oral testimony was admitted without objection. The bill of sale from Wade Motor Company to Deaton, the bill of sale from Deaton to Cummings, and the receipt from Wade Motor Company to Deaton were then tendered in evidence and excluded on the objection that the bill of sale had been materially altered by the insertion of the motor number after delivery, and that the other exhibits were an attempt to prove by extraneous evidence the motor number of the vehicle claimed. These objections were sustained without exception. After judgment for the State, a motion for a new trial was made on the general grounds only, the overruling of which is assigned as error.
1. Code (Ann. Supp.) § 58-207, providing for the seizure of contraband vehicles, contains in subparagraph (g), as to the intervention of parties at interest, the following: "The holder of any bona fide lien on the property so seized shall be protected to the full extent of his lien; Provided such holder shows that the illegal use of the property was without his knowledge, connivance or consent, express or implied." The State in its pleadings admitted that the owner was unknown to it. Facts alleged in a pleading are available to the adversary as admissions without offering the same in evidence. East Tenn. Va. Ga. Ry. Co. v. Kane, 92 Ga. 187 ( 18 S.E. 18). The State did not offer evidence for the purpose of showing that Cummings was not the owner, nor did any evidence offered by Cummings tend to disprove his claim. It is therefore necessary only to inquire whether the claimant introduced sufficient evidence to support his contention that he was a bona fide lien holder, since, if so, it was error to find contrary to the claim. The best evidence of his lien was the bill of sale which was excluded, but parol testimony of three witnesses fully described the entire transaction, the existence and contents of the bill of sale, the subsequent addition of the motor number, the reason for its addition at a later date, and its correctness. As stated in Maynard v. Rawlins, 45 Ga. App. 91 (1) ( 163 S.E. 269): "Secondary evidence, such as parol evidence, as to the contents of a written instrument, is sufficient to establish the contents of the instrument; and where it is admitted without objection, a verdict found in a suit to recover upon the instrument is not contrary to the evidence upon the ground that the contents of the instrument were not proved. Munroe v. Baldwin, 145 Ga. 215 ( 88 S.E. 947); Ga. Coast c. R. Co. v. Herrington, 14 Ga. App. 539 ( 81 S.E. 814)." See also Thos. N. Baker Lumber Co. v. Atlantic Mill Lumber Co., 24 Ga. App. 749 (2) ( 102 S.E. 135). The evidence on behalf of the claimant was sufficient to support a judgment in his favor, and, there being no evidence to the contrary, it was error for the trial court, sitting without a jury, to find against the claim.
2. The fact that the bill of sale in this case was improperly recorded, as contended by the solicitor, does not affect this ruling, since it is not necessary as a condition precedent for the intervenor in a condemnation proceeding to have recorded the instrument upon which his claim is based. See State of Ga. v. McRee, 83 Ga. App. 284 (supra).
3. The fact that the motor number was inserted after the execution of the instrument does not vitiate it, since the evidence is undisputed that this was done by consent of the parties thereto. Russell v. Pittman, 58 Ga. App. 682 ( 199 S.E. 767).
The trial court erred in overruling the motion for a new trial.
Judgment reversed. MacIntyre, P. J., and Gardner, J., concur.