(Tex., 282 S. W. 791.) 185; 1 Cooley, Briefs on Ins. pp. 141, 142. In a suit upon an indemnity policy covering an automobile such as this one, the plaintiff must allege and prove ownership before he is entitled to recover, and, in the absence of an allegation or of proof of ownership, a general demurrer would lie to the petition, or an instructed verdict would be proper. 14 R. C. L. 590; 1 Cooley, Briefs on Ins. p. 137; Hessen v. Iowa Auto. Mut. Ins. Co. 195 Iowa, 141, 30 A.L.R. 657, 190 N. W. 151; Howell v. Connecticut F. Ins. Co. 215 Mo. App. 386, 257 S. W. 178; Miller v. Ammon, 145 U. S. 421, 36 L. ed. 759, 12 Sup. Ct. Rep. 884; Phalen v. Clark, 19 Conn. 421, 50 Am. Dec. 253; Hartford F. Ins. Co. v. Galveston, H. & S. A. R. Co. - Tex., 239 S. W. 919; 13 C. J. 508; Hall v. Edwards, Tex. ―, 222 S. W. 167; Fred Miller Brewing Co. v. Coonrod, — Tex. Civ. App., 230 S. W. 1099; Wegner Bros. v. Biering, 65 Tex. 506; Commercial F. Ins. Co. v. Capital City Ins. Co. 81 Ala. 320, 60 Am. Rep. 162, 8 So. 222; Western Assur. Co. v. McCarty, 18 Ind. App. 449, 48 N. E. 265; Farmers Ins. Co. v. Burris, 23 Ind. App. 507, 55 N. E. 773; German Ins. Co. v. Everett, Tex. Civ. App. -, 36 S. W. 125; Northwestern Nat. Ins. Co. v. Woodward, 18 Tex. Civ. App. 496, 45 S. W. 185; Commercial Union Assur. Co. v. Dunbar, 7 Tex. Civ. App. 418, 26 S. W. 628; 1 Cooley, Briefs on Ins. pp. 215, 216; Sharp v. Niagara F. Ins. Co. 164 Mo. App. 475, 147 S. W. 154; 14 R. C. L. 590; Sun Ins. Office v. Merz, 64 N. J. L. 301, 52 L.R.A. 330, 45 Atl. 785; Western Assur. Co. v. Koontz, 17 Ind. App. 54, 46 N. E. 773. In this case plaintiff, having sued as mortgagee, must recover as such and show himself to be a mortgagee, not only because he has so pleaded, but because he seeks recovery on a contract that only covers him as such. Hessen v. Iowa Auto. Mut. Ins. Co. 195 Iowa, 141, 30 A.L.R. 657, 190 N. W. 151; 33 C. J. 102; Graves v. Boston Marine Ins. Co. 2 Cranch, 419, 2 L. ed. 324; Finney v. Bedford Commercial Ins. Co. 8 Met. 348, 41 Am. Dec. 515; Peck v. New London County Mut. Ins. Co. 22 Conn. 575. Bishop, J., filed the following opin ion: Plaintiff in error, W. F. Hennessy, purchased a secondhand automo bile without demanding and receiving the license fee receipt or bill of sale, and thereafter sold the car to one Chisholm, retaining a mortgage on it to secure the payment of the notes executed to him by Chisholm in payment for same. He did not transfer and deliver to Chisholm the license fee receipt, nor a bill of sale at the time he sold. After the sale to Chisholm the defendant in error, Automobile Owners' Insurance Association, issued its insurance policy against fire and theft upon the car in the sum of $625, payable to plaintiff in error as mortgagee, as his interest might appear. After the issuance of the policy, and while the same was in full force and effect, the car was stolen and destroyed by fire. Defendant in error refused to make payment under the policy, and this suit was instituted by plaintiff in error seeking judgment for the amount due on his notes, together with 12 per cent penalties and attorneys' fees. At the conclusion of the evidence, the district court instructed a verdict for defendant in error, and on this verdict rendered and entered judgment denying plaintiff in error recovery. The court of civil appeals affirmed this this judgment, holding that, as plaintiff in error violated the provisions of the act passed by the thirty-sixth legislature at its regular session, 1919, being chapter 138, p. 253 (Vernon's Anno. Penal Code Supp. 1922 arts. 161731617k), at the time he purchased the automobile, and also violated the provisions of this act at the time he sold the car to Chisholm, neither he nor Chisholm had any title to or insurable interest in the car. — Tex. Civ. App., 273 S. W. 1024. This holding is sustained by the courts of civil appeals in the cases of Overland Sales Co. v. Pierce, Tex. Civ. App., 225 S. W. 284; Goode v. Martinez, Tex. Civ. App. —, 237 S. W. 576; Foster v. Beall, Tex. Civ. App., 242 S. W. 1117; Chaddick v. Sanders, Tex. Civ. App. 250 S. W. 722; Mullin v. Nash El Paso Motor Co. Tex. Civ. App. -, 250 S. W. 472; Ferris v. Langston, Tex. Civ. App., 253 S. W. 309; Fulwiler Motor Co. v. Walker, Tex. Civ. App. —, 261 S. W. 147; Cullum v. Lub-Tex Motor Co. Tex. Civ. App. —, 267 S. W. 322; Grapeland Motor Co. v. Lively, Tex. Civ. App. -, 274 S. W. 168, and Tri-State Motor Co. v. King, Tex. Civ. App. -, 277 S. W. 433. Sections 3a, 3b, 3c, 4, and 9, of this act are as follows: "Sec. 3a. It shall be unlawful for any person acting for himself or any one else, to offer for sale or trade any secondhand motor vehicle in this state, without then and there, having in his actual physical possession the tax collector's receipt for the license fee issued for the year that said motor vehicle is offered for sale or trade. "Sec. 3b. It shall be unlawful to sell or trade any secondhand motor vehicle in this state without transferring by indorsement of the name of the person to whom said license fee receipt was issued by the tax collector and by physical delivery of the tax collector's receipt for license fee for the year that the said sale or trade is made. "Sec. 3c. It shall be unlawful for any person acting for himself or another to buy or trade for, any secondhanded motor vehicle in this state without demanding and receiving the tax collector's receipt for the license fee issued for said motor vehicle for the year that said motor vehicle is bought or traded for. "Any person violating the provisions of §§ 3a, 3b, or 3c shall be guilty of a misdemeanor and upon conviction shall be fined in any sum, not less than ten dollars ($10) or more than two thousand dollars ($2,000.00), or by confinement in the county jail for any term less than one year, or both such fine and imprisonment, and all moneys collected for such fines shall be placed in the road and bridge fund of the county in which the violation occurs and the penalty is recovered. "Sec. 4. It shall be unlawful for any person, whether acting for himself or as an employé or agent to sell, trade, or otherwise transfer any secondhand motor vehicle without delivering to the purchaser a bill of sale in duplicate, the form of which is prescribed in this act, one copy of which shall be retained by the transferee as evidence of title to ownership, and the other copy of which shall be filed by the transferee with the county tax collector as an application for transfer of license together with the lawful transfer fee of $1.00. "Sec. 9. Anyone who shall fail to comply with any of the requirements of this act as prescribed in §§ 1, 2, 3, 4, 7, and 8, shall be deemed guilty of a misdemeanor, and upon conviction shall be fined in any sum not less than ten ($10.00) dollars, nor more than one hundred ($100.00) dollars, and all such fines when recovered, shall be placed in the road and bridge fund of the county in which the violation occurs and the penalty is recovered." We agree with the defendant in error that illegal contracts are void, and the courts will not recognize rights legal-void. as springing there Contracts from. We are also in accord with its contention that contracts prohibited by statute, either -prohibited expressly or im- validity. pliedly, are void without regard to the question of moral turpitude, and that contracts directly and expressly prohibited -when void. by a constitutional statute in unmistakable language are absolutely void. This statute, however, does not in unmistakable language prohibit contracts of sale of secondhand motor vehicles. It permits such contracts when made in the manner required by its terms. Section 9 of the above-quoted act clearly states that it is the failure to comply with the requirements of § 4, which is denounced as a crime. The requirements of § 4 are that the seller of a secondhand motor vehicle deliver to the purchaser a bill of (- Tex., 282 S. W. 791.) sale in duplicate and that the purchaser shall retain one copy as evidence of title, and file the other with the county tax collector. It is not then the sale of secondhand motor vehicles which is penalized, but the failure to comply with the requirements when such sales are made. The sale is regulated, but not otherwise prohibited. The right to sell is not interfered with. The language used in §§ 3b and 3c is identical with that used in § 4 in stating that "it shall be unlawful" to sell or buy without transferring and delivering or demanding and receiving the receipt, and the language of § 3c penalizing a person for the offense, while not identical with that used in § 9, is not materially different therefrom. We, for this reason, conclude that the gist of the offense denounced is not the contract of sale, but the failure to comply with the regulatory requirements prescribed. The act does not expressly provide that sales made without complying with the requirements shall be void. A sale, however, is a necessary incident to a failure to comply with the regulatory requirements; and, if the contract of sale is to be held void, it must be because it will be implied that it was the intention of the legislature that this should result from the failure to do that which the statute requires. Whether it should be implied that it was the intention of the legislature that such sales should be void depends upon the effect which should be given the language used in the act, and the effect to be given is controlled in a large measure by the purpose in view when the law was enacted. If the evil for which a remedy was sought was inherent in the sale itself, and the purpose was to correct this evil, it should be implied that the intention was to prohibit the sale and thereby render it void. If, on the other hand, the purpose was to correct an evil which bore no direct relation to the contract of sale, the courts would not be warranted in holding that it was the intention to declare such a sale void; for, in the latter case, the sale would be a mere incident without any direct relation to the crime committed. If the evil was the fraudulent sale and transfer of secondhand motor vehicles, and the purpose of this act was to correct this evil, and thereby protect the public from fraud and imposition, a sale without the transfer and delivery of the receipt and execution and delivery of bill of sale would be evidence of a fraudulent transaction and result in a legal presumption of fraud, which would render the contract void. The vice or wrong denounced by the act would inhere in the sale itself. The failure to comply with the requirement would brand the sale as a fraudulent one. In such case it should be inferred that it was the intention of the Legislature that the contract of sale should not have the effect to transfer title. The purpose for which this act was passed is clearly expressed in the caption of the bill. It is to prevent the theft of motor vehicles. We may not pre- Statutes-pursume that the pur- pose-title. pose was other than Insurance vehicle-failure requirements. that expressed. Its purpose was not fest that the legislature had no intention to declare void sales made where the acts required are not performed. Dunlap v. Mercer, 86 C. C. A. 435, 156 Fed. 545; Harris v. Runnels, 12 How. 84, 13 L. ed. 901; Pangborn v. Westlake, 36 Iowa, 546; Littell v. Brayton Motor & Accessory Co. 70 Colo. 286, 201 Pac. 34; Forney v. Jones, 76 Colo. 319, 231 Pac. 158; Williams v. Stringfield, 76 Colo. 343, 231 Pac. 658; Carolina Discount Corp. v. Landis Motor Co. 190 N. C. 157, 129 S. E. 414. We cannot agree with the holding that plaintiff in error, Hennessy, got no title to the automobile when he purchased it in violation of the requirements of the act, and that title did not pass to Chisholm on the sale to him. Hennessy had an insurable interest in the property insured, and we recommend that the judgments of both courts be reversed, and the cause remanded to the district court. Cureton, Ch. J., delivered the opinion of the court: The judgment recommended in the report of the commission of appeals is adopted, and will be entered as the judgment of the supreme court. We approve the holding of the Commission of Appeals on the questions discussed in its opinion. Petition for rehearing denied. NOTE. Insurance against theft of automobile is the subject of the annotation following ROYAL INS. Co. v. JACK, post, 534. As to what amounts to an insurable interest, see subd. I. of that annotation. JOSEPH BARNETT, Respt., V. LONDON ASSURANCE CORPORATION, Appt. Washington Supreme Court (Dept. No. 2) — April 15, 1926. (138 Wash. 673, 245 Pac. 3.) Insurance, § 862 of stolen property - right to recover. 1. One insuring a bona fide purchaser of a stolen car against its theft cannot set up want of title in insured as a defense to liability on the policy. [See annotation on this question beginning on page 534.] (138 Wash. 673, 245 Pac. 3.) APPEAL by defendant from a judgment of the Superior Court for King County (Ronald, J.) in favor of plaintiff in an action brought to recover on a policy of theft insurance. Affirmed. The facts are stated in the opinion of the court. Mr. Fred G. Clarke, for appellant: The car in the possession of plaintiff being a stolen car, he had no title whatever thereto. State Bank v. Johnson, 104 Wash. 550, 3 A.L.R. 235, 177 Pac. 340; 17 R. C. L. 90. A person with no title has no insurable interest therein. O'Neill v. Queen Ins. Co. 230 Mass. 269, 119 N. E. 678. Absence of title renders the policy void. Hessen v. Iowa Auto. Mut. Ins. Co. 195 Iowa, 141, 30 A.L.R. 657, 190 N. W. 150. The subrogation clause in a policy is a valuable one, and if the insured has defeated the right of the company to claim under it he cannot recover under the policy. Downs Farmers Warehouse Asso. v. Pioneer Mut. Ins. Asso. 41 Wash. 372, 83 Pac. 423; 26 C. J. 459. Messrs. Robbins & Rickles, for respondent: Respondent had good title to the car described in the policy of insurance issued, had therefore an insurable interest therein, and could sustain a loss under the policy. He was the "unconditional and sole owner" of the automobile within the meaning of that clause as provided in the policy. N. J. Norris v. Alliance Ins. Co. L., 123 Atl. 762; Savarese v. Hartford F. Ins. Co. 99 N. J. L. 435, 123 Atl. 763. For an insurance company to avail itself of the defense that insured was not the sole and unconditional owner of the insured property, it must, as a condition precedent to such defense, return or tender the premium paid by the insured. 3 Joyce, Ins. 2d ed. p. 2629, § 1429A; German Union F. Ins. Co. v. Fred G. Clarke Co. 116 Md. 622, 39 L.R.A. (N.S.) 829, 82 Atl. 974, Ann. Cas. 1913D, 488; Metropolitan L. Ins. Co. v. Freedman, 159 Mich. 114, 32 L.R.A. (N.S.) 298, 123 N. W. 547; Caledonian Ins. Co. v. Indiana Reduction Co. 64 Ind. App. 566, 115 N. E. 596; Vulcan Ins. Co. v. Johnson, 74 Ind. App. 62, 128 N. E. 664. Main, J., delivered the opinion of the court: This action was brought upon an insurance policy to recover for loss sustained by reason of the theft of an automobile. The cause was tried to the court without a jury, and resulted in findings of fact, conclusions of law, and a judgment sustaining a recovery in the sum of $450. From this judgment the defendant appeals. On February 10, 1923, the respondent in the city of Chicago purchased a Ford touring car, and paid therefor the sum of $450. Thereafter he added accessories to the extent of something over $100. The car was used by the respondent at the place where it was purchased in connection with his business there until May 8th following. Subsequent to the latter date the automobile was driven by the respondent from Chicago to Seattle, where he arrived on May 22d. The car was then used in the city of Seattle until August 22d, when it was stolen. On July 12, 1923, and prior to the date of the theft, the appellant had issued to the respondent an insurance policy covering the automobile against theft. After the car was stolen, the respondent reported this fact to the appellant. Upon receipt of this information the appellant made a search for it, and in the course of such search discovered a Ford automobile bearing the same number in the state of Mississippi. That automobile was in possession of the rightful owner there who had purchased it, and was not the one upon which the appellant had issued the policy of insurance. The respondent's car which was covered by the insurance, was at no time found. The appellant's first point is that the respondent had no title to the car described in the policy of insurance, and therefore had no right to recover thereon. This position is |