Section 1017 of the Code requiring contracts for the conditional sale of personal property, etc., etc., other than of railroad rolling stock, to be recorded is not in force in Jefferson county, and has not been since February 21, 1899. — Acts, 1898-99, p. 1120.
The plaintiff’s right to recover, in this case, therefore, depends upon whether his vendor had title to the cow, he being in no position to invoke the doctrine of bona ]fide purchaser for value.—Weinstein v. Freyer, 93 Ala. 257.
The plaintiff predicates his right to the cow sued for upon the title of one Henry McFerrin from whom he says he purchased it. McFerrin claims to have derived
It is shown, without dispute, that Mrs. Keller originally owned the cow and sold it to Mrs. McFerrin. Mrs. Keller testified positively that she retained the title to the cow until paid for and that the purchase money was never paid. The only attempt by plaintiff to contradict this testimony is found in a written showing for witness McFerrin, plaintiff’s vendor,,the substance of which is that the wife of the- Avitness bought the coav from Mrs. Keller; “that she OAvned. said cow at the time of her death and that the cow Avas a part of her estate; that witness sold the coav to the plaintiff in December, 1901; that it was his property at the time of the sale, and there was no lien of any kind on it.”
This testimony affording an inference merely that the title to the cow Avas not retained, or if retained, that the purchase price had been paid, is, in our opinion, insufficient to overcome the positive testimony of Mrs. Keller, especially in vieAV of the fact that the burden was upon plaintiff to show title in Mrs. McFerrin.
The case having been tried by the court without the intervention of a jury, the judgment will be' reversed, and one Avill be here rendered for defendant.
Reversed and rendered.