If it was true, as appellee alleged it was, that he was an "innocent purchaser" of the automobile, and that because he was such a purchaser he was entitled by the law the Texas courts would apply to the case to protection against the claim of the auto company, and if it was also true, as appellee further alleged it was, that, notwithstanding he was such a purchaser, he was not entitled to protection against said claim by the law the Arkansas courts would apply to the case, the special judge did not err when he overruled the auto company's motion to dissolve the injunction. 15 C.J. 1184; 14 R.C.L. 412 to 416; 7 R.C.L. 1070. Therefore the Judgment should not be disturbed if it appears: (1) That *Page 556 appellee was an "innocent purchaser" of the automobile within the meaning of the law; (2) that because he was such a purchaser he would be entitled by force of law the Texas courts would apply to protection in a suit by the auto company against him; and (3) that the fact that he was such a purchaser will not by force of law the Arkansas courts will apply to the case entitle him to protection in the suit brought by the auto company against him in that state.
We think it sufficiently appears in the record that appellee was an "innocent purchaser," for it was shown that he paid Parker a valuable consideration for the automobile, believing in good faith that Parker owned it, and without notice of any kind that the auto company had or claimed an interest in it.
The automobile was in Texas at the time the auto company sold it to Parker, and the contract covering the sale thereof was made and was to be performed in Texas. By force of the laws of Texas the contract operated as a chattel mortgage only, even as between the parties, notwithstanding the reservation by the auto company to itself of the title to the automobile until Parker paid for it. Vernon's Statutes, art. 5654; Crews v. Harlan, 99 Tex. 93, 87 S.W. 656, 13 Ann.Cas. 863; Harling v. Creech,88 Tex. 300, 31 S.W. 357; Hall v. Machine Co., 33 Tex. Civ. App. 526,77 S.W. 1054. Such being the effect of that contract by the law the Texas courts would apply, they would hold that the title to the automobile passed to Parker, and that the only interest the auto company had left in the car was that of a lienor.
The testimony in the record to show the law the Arkansas courts would apply in determining the validity and legal effect of said contract consists (1) of the statement of an attorney acquainted with the laws of that state and the practice in said courts, and (2) of the decision of the Arkansas Supreme Court in Public Parks Amusement Co. v. Embree-McLean Carriage Co., decided in 1897 and reported in 64 Ark. 29, 40 S.W. 582. It will not be necessary to refer further to the statement of said attorney in the record, as the parties agree that the opinion in the case specified "is the latest expression of the courts of Arkansas with reference to the question of law therein discussed and involved, and that it is now and was at the time of the institution of this suit the law governing the question therein involved in the State of Arkansas."
In the case specified, the carriage company, in Missouri, sold certain carts to the amusement company, taking its promissory notes for the purchase price. The notes contained a stipulation that the title to the carts should remain in the carriage company until they were paid. By the law of Missouri the reservation by the carriage company of the title to the carts was valid as between it and the amusement company, but was invalid as against third persons unless the contract evidencing it was reduced to writing, acknowledged, and duly recorded. After it purchased the carts, the amusement company carried them to Arkansas and there conveyed them to a trustee to secure a debt it owed one Butler, who intervened in the replevin suit brought by the carriage company, claiming that he stood in the attitude of and was entitled to protection as an innocent purchaser of the carts. In affirming a judgment in favor of the carriage company, the Arkansas Supreme Court said:
"The statute of Missouri requiring the record in that state of an instrument by which title to personal property is retained in the vendor thereof, until payment therefor is fully made, to give it validity against creditors, has no operation or effect in Arkansas. By the laws of Missouri, as provided in this case, the reservation of title by the seller until the property is paid for, though invalid as against third persons, unless the contract is reduced to writing, acknowledged, and duly recorded, is valid as between the parties; and if the purchaser holding possession under such a conditional sale, brings the property into Arkansas, and here sells it to a third person, the title of the latter cannot prevail against that of the original vendor, under the laws of Missouri. Weinstein v. Freyer, 93 Ala. 257, 9 So. 285 [12 L.R.A. 700], and cases cited. Under the settled decisions of this court, where the vendor of personal property expressly retains the legal title in himself until the purchase money is paid, no title passes to the purchaser by the delivery of possession, and he can convey none to a subsequent purchaser, though without notice, until the purchase money is paid. * * * The contract in this case was made and was to be performed in Missouri. This being true, the laws of Missouri must govern as to the validity, interpretation, and construction of the contract."
The effect of the decision, as we understand it, is to show that in the auto company's suit against appellee pending in the Miller county circuit court the courts of Arkansas will, as the Texas courts would in a like controversy, apply the laws of Texas in determining the validity, interpretation, and construction of the contract between the auto company and Parker. It seems therefore that the Arkansas courts, in the trial of the auto company's said suit, will not hold, as their laws would require them to had the transaction occurred in that state, that the title to the automobile remained in the auto company until Parker paid for it, but will hold, as the Texas courts would, that the title passed to Parker, and that the auto company had no other claim to the car than that of a mortgagee without right of possession. The contract between appellee and Parker was made and was to be, and it was, performed in part in Arkansas. Therefore the Texas courts would treat it as an *Page 557 Arkansas contract, nothwithstanding it was to be and was partly performed in Texas, and in determining its meaning and effect would look, as would the courts of Arkansas to the law of Arkansas. Ry. Co. v. Harris, 1 White W. Civ.Cas.Ct.App. § 1257; Tel. Co. v. Douglass, 104 Tex. 66,133 S.W. 877; 12 C.J. 451; 9 Cyc. 684. So, it seems, if by the laws of Texas appellee, because he was an "innocent purchaser" of the car, was entitled to protection against the claim of the auto company, protection would be accorded to him by the Texas courts and the Arkansas courts alike; and if by those laws he was not entitled to such protection, said courts would deny it to him alike. It appears therefore that appellee was not entitled to the relief he obtained; and hence that the special judge erred when he overruled the motion to dissolve the injunction.
His Judgment will be reversed, and judgment dissolving the injunction and remanding the cause, with instructions to dismiss appellee's suit, will be here rendered.