— In Sumner v. Woods, 52 Ala. 94, the written contract between the appellant, Sumner, and the appellee, Woods, was construed by this court, -when the case was here once before this, on appeal. It was there properly declared to be a conditional sale, and not a mere bailment, or chattel mortgage. The question as to the rights of a bona fide purchaser of the property in suit did not properly arise in that case, and was unnecessarily stated, being a dictum uttered without proper consideration, and entirely opposed not only to the weight of authority, but to a previous decision of this court, in Holman v. Lock’s Adm’r, 51 Ala. 287, where it was expressly held, that, in a case of conditional sale, the title under the terms of the contract remaining in the vendor until payment of the purchase-money, the conditional vendor of a horse could recover in trover against a mortgagee without notice.
In Dudley v. Abner, 52 Ala. 572, Mr. Justice Manning held such a contract to be a parol chattel mortgage, void as to bona fide purchasers and creditors of the vendee under the influence of our statutes requiring conveyances of personal property to be recorded in the office of the judge of probate. The other two judges concurred in the view, that the transaction was a conditional sale, void as against bona fide purchasers -without reference to the registration laws.
In view of this conflict between the past adjudications of *142this court, we feel impelled to follow the weight of authority, which is in full accord also with the weight of reason.
We consider it settled by an overwhelming preponderance of the decisions, that, where there is an express stipulation in the sale of personal property, that the property shall not be the vendee’s until the price is paid, the title does not pass,. the transaction being a mere conditional sale. And that a bona fide, purchaser of such property acquires only the conditional title of his vendor, and cannot be protected against recovery on suit brought by the original vendor and owner of the legal title. The fact that the first purchaser, or second vendor, was at the time of sale in possession of the property does not change the principle. It is a question of right and not notice, and the maxim of caveat emptor applies with as much force as in cases of ordinary bailments. The principle, of course, does not obtain where the condition has been expressly or impliedly waived by the vendor, or he has done or suffered anything by reason of which the purchaser from the vendee has been misled. — Benj. on Sales, § 320, note (d); Ketchum, v. Brennan, 53 Miss. 596; Ballard v. Burgert, 40 N. Y. 314.; Bigelow v. Huntley, 8 Vt. 151; Sargeant v. Metcalf, 5 Gray, 506; Hart v. Carpenter, 24 Conn. 427; Price v. Jones, 3 Head, (Tenn.) 84; McFarland v. Farmer, 42 N. H. 386; Griffin v. Pugh, 44 Mo. 326; 1 Pars, on Cont. 537, and notes; Story on Sales, § 313; 2 Kent, 768-9 ; Bailey v. Harris, 8 (Clarke), Iowa, 331; Jowers v. Blandy, 58 Ga. 379; Carroll v. Wigqins, 30 Ark. 402; 5 Waite’s Act. and Def. p. 547, § 15.
Holding these views, we feel constrained to overrule the conclusions reached in Sumner v. Woods, 52 Ala. 94, and in Dudley v. Abner, 52 Ala. 572, so far as those cases conflict with the above well established principle, as once before decided by this court in Holman v. Lock’s Adm’r, 51 Ala. 287, which latter case has never been expressly overruled.
The. charge given by the court below was ' erroneous, and the judgment is reversed and the cause remanded.