I cannot agree with my associates in the conclusion that the recorded mortgage was not constructive notice to subsequent purchasers of the existence of a lien to secure the unpaid part of the purchase price, owing by Pringle to the Fain-Bender Motor Company, and which mortgage and the lien retained therein was transferred by the mortgagee, acting by its duly authorized secretary and manager, to the Rhea Mortgage Company. Both mortgage and the transfer thereof were promptly filed for record in the chattel mortgage records of Tarrant county, and any purchaser of the car in question desiring to learn if the automobile was mortgaged could have, by going to the records, discovered that the proposed seller had theretofore reserved a lien thereon to secure the unpaid purchase price and that said mortgage lien had not been released. The writer cannot see how the Rhea Mortgage Company could have reasonably been expected to take any further precautions than it did to protect itself. There is no evidence that it or any of its officers knew that, when Pringle bought or purported to buy the car from Fain-Bender Motor Company, he intended to leave the car on the sale floors of the company, or that such was the case during all of the time from the sale of the car to Pringle to the sale to Lemmerman; in fact, the evidence shows to the contrary. The car was sold at least twice; to Pringle and to High. It is not definite that the Essex car was new when it was bought by Fair-Bender Motor Company from William Morriss, of Dallas. Hence, at the time the car was sold to appellee, it was a secondhand car. This fact gave appellee notice that some one had owned and used the car prior to the proposed sale to him, and the writer believes that the appellee was charged with the duty to examine the records to see if any unsatisfied mortgage was on the car at the time.
The wife of appellee was the stenographer in the office of Pringle at Fair-Bender Motor Company's place of business, and assisted Mr. Pringle in keeping the books. It is no unwarranted presumption that she wrote the mortgage retained by the motor company in the sale of the car to Pringle, and therefore had actual knowledge thereof.
Article 5494 of the 1925 Civil Code provides:
"The county clerk shall keep a book in which shall be entered a minute of all such instruments, which shall be ruled off into separate columns, with heads as follows: (a) Time of reception, (b) name of mortgagor, (c) name of mortgagee or trustee and cestui que trust, (d) date of instrument, (e) amount secured, (f) when due, (g) property mortgaged, and (h) remarks; and the proper entry shall be made under each of such heads. Under the head of `Property Mortgaged,' it will be sufficient to enter a general description of the property pledged and the particular place where located, and an index shall be kept in the manner as required for other records. When the instrument is the transfer of a lien the county clerk shall enter on the margin, or under the head `Remarks' in connection with the original record of registration of such lien, a notation, `transferred by ______ to ______ this __ day of ______, 19 —,' filling the blanks with the names of the parties and the date of such transfer, and note the date it is filed for registration. * * *"
Each county clerk is required to keep an alphabetical index, and the manner of such keeping such record is provided in articles 6597, 6598, 6599 as follows:
6597: "Each county clerk shall keep in alphabetical order a well-bound index to all books of records wherein deeds, powers of attorney, mortgages or other instruments of writing concerning lands and tenements are recorded, distinguishing the books and pages in which every such deed or writing is recorded."
6598: "It shall be a cross-index and shall contain the names of the several grantors and grantees in alphabetical order. * * *"
6599: "Each shall, in like manner, make and keep in his office a full and perfect alphabetical index to all books of record in his office, wherein all instruments of writing relating to goods and chattels, or movable property of any description, marriage contracts, and all other instruments of writing authorized or required to be recorded in his office, or recorded. * * *"
The writer does not believe, under the circumstances shown in this case, the "Bulk Sales Law" should apply, for it was not in the contemplation of both parties, at least, that the car should be retained in the possession of the seller and daily exposed for sale. Border National Bank v. Coupland (C.C.A.) 240 F. 355, in which Judge Walker, for the Fifth circuit, held that, where it was not contemplated by both parties that the goods mortgaged would be daily exposed to sale, the statute did not apply.
The writer, on account of the pressure of other official duties, has not the time to write at length on the interesting question herein involved, but he believes that appellant was vigilant in protecting himself, and did everything legally required to give notice to possible purchasers of the mortgaged property, and that of two innocent parties the one who was diligent in obeying the registration statutes should prevail. *Page 963