Wingate, J.c.c., Temporarily Assigned.
In this action for forfeiture of the Ford Van, the pivotal issue is the interpretation of the word "owner" as used in N.J.S.A. 24:21-35 b(4)(b).
Factually, the question arises by reason of the seizure of the van driven by a certain Mark Stenerson to transport a substantial quantity of marijuana into the State of New Jersey. Testimony revealed that Mark Stenerson resided with a certain Edward L. Kurth (hereinafter referred to as Kurth Junior), who arranged for Stenerson to drive the van to New Jersey with a satchel containing the marijuana to be delivered to prospective customers.
The van in question was registered and titled in the name of Edward H. Kurth, father of Kurth Junior (hereinafter referred to as Kurth Senior). It had been purchased by Kurth Senior on or about February 15, 1973 and was registered
in his name and residence, 2635 Longwood Drive, Wilmington, Delaware. The van was then turned over to Kurth Junior who was then a student at Duke University, Durham, North Carolina, and used by him exclusively as his vehicle. Subsequently, Kurth Junior moved to Falls Church, Virginia and retained the van as his personal vehicle. The van was seized on December 12, 1974 in New Jersey while being operated by Mark Stenerson and carrying a substantial quantity of marijuana with the knowledge and authorization of Kurth Junior. Unquestionably, the father, Kurth Senior, had no knowledge of the illicit use of the van nor did he authorize or consent to the use of the vehicle by Stenerson.
Significantly, after the seizure of the van Kurth Junior told his father that he had an opportunity to sell the vehicle at a good price and wanted to buy another car. Kurth Senior agreed and attempted to transfer title to the van to his son for this purpose. Kurth Junior in fact did purchase another vehicle and the father assumed the proceeds were used to finance the new purchase. Kurth Senior did not receive or expect any of the proceeds of the sale of the van. Unfortunately, Kurth Senior learned the true facts when he, as registered owner of the vehicle, received notice of these forfeiture proceedings. Thereupon, Kurth Senior rescinded and cancelled the attempted transfer of title of the van to his son.
Kurth Senior contests this forfeiture action primarily on the grounds that he is the title owner of the vehicle and as such he is innocent of the illicit use of the same; that in fact the vehicle was so used "without the knowledge or consent of such owner," as provided in N.J.S.A. 24:21-35 b(4)(b).
The State contends that while Kurth Senior may be the registered owner the vehicle was used by Stenerson for the transport of marijuana with the knowledge and consent of the person in charge of the vehicle; namely, Kurth Junior, who was in effect the equitable owner of it.
The court has determined as a fact that the interest of Kurth Senior in the vehicle was merely that of the registered
title owner and that he exercised no other rights of ownership by way of custody, use or control. Rather, all the benefits of ownership were given to Kurth Junior with the father retaining only the registered title.
N.J.S.A. 24:21-35 b(4)(b) in effect provides that no vehicle shall be forfeited "by reason of any act or omission, established by the owner thereof to have been committed or omitted without the knowledge or consent of such owner". If Kurth Senior was the owner of said vehicle at the time of the seizure, then obviously, its illegal use by Stenerson was without the express knowledge or consent of him. It is ...