The automobile was at first the property of the West Point Overland Company, which had it for sale. It was sold conditionally to defendant, but no title has ever passed, because the condition of full payment of the purchase price has never been performed, as all parties agree. The title then remains in the Overland Company, unless it has been shown to have passed to plaintiff. We may concede that the contract of conditional sale — that is, the paper writing purporting to evidence the sale — was assigned to plaintiff in some form, whether unconditionally or with conditions does not appear; but if that paper writing had been materially altered by plaintiff or the Overland Company after its execution, and without the knowledge and consent of defendant, who therein promised to pay the price, that alteration reduced the paper to a status of invalidity as an obligatory instrument, though it may have sufficed to prove for collateral purposes the terms of the genuine contract. But let it be assumed — though the great weight of the evidence was to the contrary — that the conditional contract of sale was assigned to plaintiff in its genuine shape, we still do not know the terms of the assignment, and therefore we must hold that it did not pass the title to the automobile; so far as we can determine, it passed only the right to collect the purchase price. Our only recourse, then, is to hold that the title remained in the Overland Company. Appellant, plaintiff, quotes a witness to the effect that an assignment of the paper was made "as shown on the back of the sales contract." Possibly that assignment undertook to transfer to plaintiff the legal title to the automobile in such sort *Page 629 as to permit appellant's recovery in this case, but the quoted testimony — and there is none other to the like effect — falls far short of proving, or even tending to prove, the contents of the writing on the back of the sales contract, or in anywise a transfer of title to the machine in suit. The paper writing, the contract between the West Point Company and the appellee defendant East, did not pass the legal title to East. How, then, could a naked assignment of same paper pass the title to appellant? We think the answer is obvious. We have held, on what ought to be considered obligatory authority, that we cannot look to the original paper. If there is any force in what has been written, here and heretofore, the record affords no other information, and we are constrained to hold on this record that the legal title to the automobile was at the time of the trial in another than plaintiff, appellant, and hence that plaintiff could not recover. There has been no occasion for a ruling to the effect that no interest in the property passed by the assignment of the conditional sale contract, nor is any such ruling made. Nor can the incidental expression to be found in Garrison v. Hamlin, 215 Ala. 39, 109 So. 106, be held as a decision to the effect that by such assignment the legal title to the property passed. That case involved the taxing power, and the question whether conditional sale contracts needed to be recorded. And the case of Fidelity Deposit Co. v. Richeson, 213 Ala. 461, 105 So. 193, cited to Garrison v. Hamlin, dealt with the equitable right of subrogation. To repeat, the ruling now is simply that the bare assignment of the conditional sale contract does not pass the legal title to the property the subject of the contract, which is necessary to sustain the action of detinue. In Ensley Lumber Co. v. Lewis, 121 Ala. 94, 25 So. 729, the language of this court, directly in point, was that the assignment of purchase-money notes, in which the title to the property sold was retained by the seller, did not pass the legal title to the assignee. Another case precisely in point is Domestic Sewing Machine Co. v. Arthurhultz, 63 Ind. 322. Mr. Williston says that:
"The right of the seller's assignee to the property in such case is equitable rather than legal." 1 Williston on Sales, § 331.
Appellant quotes from 24 Rawle C. L. p. 478, where it is said that:
"The assignment of the contract by the seller carries with it the right of property, together with the right of possession for condition broken, whether the default be prior or subsequent to the assignment."
This was based on Landigan v. Mayer, 32 Or. 245, 51 P. 649, reported in 67 Am. St. Rep. 521. In the same paragraph of 24 Rawle C. L. it is said to be held in some cases that "a mere indorsement cannot constitute a sale and assignment of the property in the subject matter of the conditional sale," citing 37 L.R.A. (N.S.) 74, where Winton Motor Carriage Co. v. Broadway Automobile Co., 65 Wash. 650, 118 P. 817, is reported, and where the editorial commentator, speaking of the decision in Ensley Lumber Co. v. Lewis, thought that:
"It should be noted that the court [this court] did not consider the real ground of the decision in the Winton Motor Carriage Company Case, which was that the indorsement of the note was an election to treat it as an absolute debt, and therefore an election which vested title to the property in the purchaser."
Perhaps this court did not consider the real ground of the decision in the Winton Motor Carriage Case for the reason that this court had previously refused to accept that doctrine. Thomason v. Lewis, 103 Ala. 426, 15 So. 830; Forbes Piano Co. v. Wilson, 144 Ala. 586, 89 So. 645. We think it may be observed that the decisions holding that the property passes with the assignment of the purchase-money note so hold because the law of those jurisdictions regards such contracts only as security in the nature of a lien — such was the case in Landigan v. Mayer, 32 Or. 245, 51 P. 649, 67 Am. St. Rep. 521 — or, what amounts to the same things, because the terms of the contract create only a lien securing the debt. Winton Motor Carriage Case, supra. But that doctrine in this state is distinctly a doctrine of equitable cognizance only. In many of the states the title in cases of this sort is retained as a security merely and the right of the vendor is treated as an equity cognizable in courts which exercise jurisdiction in law and equity cases alike. So in Landigan v. Mayer, supra, and many other cases that might be cited. But in this state it has been uniformly held that the legal title does not vest in the buyer until performance of the condition, and that a bona fide purchaser acquires only the conditional title of his vendor. Sumner v. Woods, 67 Ala. 142, 42 Am. Rep. 104; Warren v. Liddell, 110 Ala. 242, 20 So. 89; Bishop v. Minderhout,128 Ala. 162, 29 So. 11, 52 L.R.A. 395, 86 Am. St. Rep. 134.
The discussion need not be further drawn out. Various considerations, of no controlling influence in this state, have moved the courts elsewhere to different conclusions. Winton Motor Carriage Co. v. Broadway Automobile, 65 Wash. 650,118 P. 817, 37 L.R.A. (N.S.) 74. Our judgment, on the authorities stated above, is that, in this state, where the distinction between the law and equity jurisdictions of the courts has been carefully and consistently preserved, the mere assignee of a conditional sale contract of personal property cannot maintain the strictly legal action of detinue for the property so sold. The vendor may sue at law for the use of the assignee. An action of that sort was approved by this court in Thomason v. Lewis, 103 Ala. 426, 15 So. 830, where the *Page 630 vendor assigned the purchase-money notes but retained title. Or it may be that the assignee, upon indemnifying the assignor against liability for costs, may use the name of the assignor in an action to recover the specific property. In equity the parties would be treated differently. Barton v. Broyles Stove Furniture Co., 212 Ala. 658, 103 So. 854.
Application overruled.