Opinion
2 Div. 90.
March 25, 1937. Rehearing Denied June 3, 1937.
Appeal from Circuit Court, Sumter County; Benj. F. Elmore, Judge.
Mullins, Deramus Stuart, of Birmingham, and Jenkins Jackson, of Livingston, for appellant.
The recording statute does not change the rule as to actual notice. Code 1923, § 6898; Malone Motor Co. v. Green, 213 Ala. 635, 105 So. 897. Means of knowledge may be equivalent to knowledge. Whatever is sufficient to put one on his guard and call for inquiry is notice of everything to which the inquiry would lead. Malone Motor Co. v. Green, supra; Alexander v. Fountain, 195 Ala. 3, 70 So. 669; Gamble v. Black Warrior Coal Co., 172 Ala. 669, 55 So. 190; Peoples Bank v. McAleer, 204 Ala. 101, 85 So. 413; Cleveland Woolen Mills v. Sibert, 81 Ala. 140, 1 So. 773. If the judgment creditor has knowledge of facts sufficient to excite inquiry, or knowledge of facts which would naturally and reasonably be calculated to arouse suspicion of the existence of claimant's lien, the duty of inquiry exists and must be exercised. Street v. Treadwell, 203 Ala. 68, 82 So. 28; Foxworth v. Brown, 114 Ala. 299, 21 So. 413; Warren Co. v. Barnett, 83 Ala. 208, 3 So. 609; Lomax v. Legrand Co., 60 Ala. 537. The presumption of the correctness of the findings of the trial court is not conclusive. Smith v. Allen, 215 Ala. 652, 112 So. 224; Brunswick-Balke-Collender Co. v. Starnes, 214 Ala. 263, 107 So. 743.
Geo. O. Miller and Ira D. Pruitt, both of Livingston, for appellee.
Contracts of conditional sale are, as to such condition, void as against judgment creditors without notice, unless in writing and recorded. Lynn v. Broyles Furniture Co., 3 Ala. App. 634, 57 So. 122; Pulaski Mule Co. v. Haley Koonce; 187 Ala. 533, 65 So. 783, Ann.Cas. 1916A, 877; Isbell-Hallmark Fur. Co. v. Sitz, 22 Ala. App. 229, 114 So. 675; Id., 217 Ala. 3, 114 So. 677; La Rue v. Loveman, Joseph Loeb, 220 Ala. 2, 127 So. 241; Decatur Fert. Co. v. Decatur Motors, 24 Ala. App. 32, 129 So. 709; Gen. Motors Acc. Corp. v. Eaton, 24 Ala. App. 533, 137 So. 780; Henley v. Bradshaw Mer. Co., 220 Ala. 193, 124 So. 426. Where the evidence is heard ore tenus by the court, without a jury, the court's finding will not be disturbed on appeal unless plainly contrary to the weight of the evidence. Woodrow v. Hawving, 105 Ala. 240, 16 So. 720; Simpson v. Golden, 114 Ala. 336, 21 So. 990; Thompson v. Collier, 170 Ala. 469, 54 So. 493; Finney v. Studebaker Corp., 196 Ala. 422, 72 So. 54; Palmer v. James, 210 Ala. 641, 99 So. 109; Smith v. Bugg, 211 Ala. 341, 100 So. 503.
The question presented by this appeal is one of fact — whether or not complainant had notice of the existence of the unrecorded conditional sale contract between the defendant in execution and Duncan Tire Auto Company, under which the claimant, appellant here, claims title to the automobile levied on by the sheriff.
It is not enough that she had notice or knowledge that there was a balance due on the purchase price; she must have notice or knowledge of the existence of the contract, and that through it the seller retained the title to the automobile at the time the judgment was rendered, or at least before the levy was made. Code 1923, § 6898; Wood v. Lake, 62 Ala. 489; Hall and Farley, Trustees, v. Griffin, 119 Ala. 214, 24 So. 27; Silvey Co. v. Cook, 191 Ala. 228, 68 So. 37.
The evidence shows that the defendant was very young — seventeen years of age — and without business experience; that in her husband's absence and by his instruction she made a payment of $54 on the automobile. She testified that she understood that to be the last payment.
There was other evidence in the case tending to show that complainant had some knowledge of the transaction. Taking the evidence as a whole, it at most affords an inference of notice, and inasmuch as the trial court heard the evidence given ore tenus, and was in a better situation to judge of its credibility, we are not able to affirm error in the ruling complained of.
Affirmed.
ANDERSON, C. J., and THOMAS and KNIGHT, JJ., concur.