In deference to the appellee's earnest and forceful insistence that error is with us rather than the court below, we have extended the opinion.
He says that the chattel mortgage, not having been witnessed or acknowledged, was not entitled to recordation, and, therefore, conferred no notice, citing Code 1940, Title 47, § 109. This section provides, in effect, that a conveyance not in compliance with the section loses the privileges conferred by § 104 of said title. The privileges conferred by § 104 are (1) that self-proving conveyances may be received in evidence without further proof, and (2) that of offering a certified transcript where the original has been lost or destroyed. This is not the same thing as saying that an executed chattel mortgage which is neither witnessed nor acknowledged but which has been recorded does not operate as a notice of the transfer of title to the mortgagee. Code 1940, Title 20, § 2; Bickley v. Keenan Co., 60 Ala. 293; Foxworth v. Brown Bros., 120 Ala. 59, 24 So. 1. Under Code 1940, Title 47, § 95, the probate judge was required to admit this mortgage to record and *Page 76 the filing thereunder was notice of its contents.
The fact that the instrument was not self-proving was not made an issue on the trial, and Johnson testified without objection that Simmons gave him the mortgage which had been introduced in evidence. This proof aliunde is sufficient to support its admission, Burgin v. Marx, 158 Ala. 633,48 So. 348. Davis made no effort to refute Simmons' execution of the mortgage in question. Whether or not the instrument was self-proving is immaterial.
As we take it, the mortgage was introduced primarily to show not only the debt but also the fact of the instrument's having been filed for record in the probate office. See Code 1940, Title 7, § 409; Polytinsky v. M. F. Patterson Son,3 Ala. App. 302, 57 So. 130.
Further, to the question of estoppel, appellant cites Bank of Oakman v. Thompson, 231 Ala. 73, 163 So. 614, for an asserted analogy between the bank there having stamped a note and mortgage paid and Johnson having issued a bill of sale stating he had been paid in full by Simmons. The record fails to disclose that Johnson took any position that refuted the chattel mortgage. We do not see how the principle of estoppel can work in the face of a recorded chattel mortgage in the circumstances here presented. There may be other and different cases. See Fogle v. General Credit, 74 App.D.C. 208, 122 F.2d 45, 49, 136 A.L.R. 814, where an automobile dealer having mortgaged a car on a floor plan arrangement, the mortgagee was estopped to deny the dealer's right to sell — a species of informal trust wherein the mortgagee was to look to the dealer to apply the proceeds of sale to pay or keep the debt current. Hence the vendee was not required to obtain a release from the holder of the acceptance paper. The court there stated in dictum which is pertinent here:
"* * * The opportunity to investigate is the foundation of the constructive notice. When it exists unimpaired by any act of the mortgagee, the statute casts the burden of investigation upon those who may deal with the mortgagor, and their failure to make it assumes something of the quality of negligence. * * *"
Caveat emptor is the general rule of our law of sales of goods. It may be regrettable that this case can be used to illustrate the argument that in Alabama a prudent buyer of an automobile needs to obtain an abstracter's search of the probate records. Any dissatisfaction with such a system should be addressed to the Legislature. As we conceive this case, the appellant, while cast down in conversion and detinue, is on this record not without remedy in trespass.
The application for rehearing is overruled.
Application overruled.