ON MOTION FOR REHEARING
In a vigorous motion for rehearing appel-lee presents: (1) that since appellant did not plead the affirmative defense of estoppel, no issue of estoppel was raised either in the trial court or in this Court and therefore does not constitute a subject for consideration by this Court; (2) that since appellant raised no issue in the court below regarding the identity of the property involved, the issue of identity is likewise not subject to consideration by this Court; (3) that since appellant’s special exceptions had no bearing on the summary proceedings and were not timely presented, they were waived; and (4) that appellant did not seek recovery under the doctrine of accession and, since appellee’s affidavit establishing “recorded ownership” of the property in question was uncontroverted, appellant is charged with notice thereof and was precluded from any recovery under the doctrine of accession as a matter of law.
On the first ground appellee is mistaken, because appellant did plead estoppel affirmatively in paragraph XI of his First Amended Original Answer and Cross-Action.
The second ground, we think, was properly disposed of in our original opinion. This relates to the discrepancy in the description of the property, or the matter of its identity, which we held should be left for determination by the trial court on a trial of the case on its merits.
We agree with what appellee says on the third ground for rehearing, concerning the matter of special exceptions contained in appellant’s pleadings.
He says in his motion for rehearing, as we do in our original opinion, that if the exceptions were not timely presented in the trial court they were waived. However, our reversal was not based in any degree on the failure of the trial court to pass on the exception before considering and granting the motion for summary judgment.
On the fourth ground appellee says that appellant did not seek recovery on his counterclaim under the doctrine of accession, but that whether the claim he considered as founded on “unjust enrichment” or “accession”, neither doctrine is applicable because appellant is charged with notice of appellee’s ownership. This is based on the allegations in the verified motion for summary judgment that, prior to appellant’s purchase from Schell, appellee had sold the property to one Henry Bell who had given appellee a chattel mortgage thereon to secure part of the purchase price; that the registration of such chattel mortgage “reflected that E. H. Jaynes was the owner of the property described therein.” Although *650a'ppellee also alleged in his said motion that Bell had “reassigned” the property to him prior to appellant’s purchase from Schell, he says the chattel mortgage was still “in effect and had not been released,” and was constructive notice to appellant of ap-pellee’s ownership. We cannot agree with this theory. If appellant had purchased the property from Henry Bell, then we would agree that appellant would be charged with notice of appellee’s lien, but when Bell reassigned the property to appellee the chattel mortgage became functus officio and was not notice to appellant of anything. No copy of the chattel mortgage is attached to the motion for summary judgment, but we think we may safely assume that it described Bell, not appellee, as the owner; and since Bell was not a party to the transaction here involved, his chattel mortgage to appellee did not put appellant on notice of appellee’s ownership. Walker v. Security Loan Inv. Co., Tex.Civ.App., 259 S.W.2d 599, err. ref. n. r. e.; Rhea Mortgage Co. v. Lemmerman, Tex.Comm.App., 10 S.W.2d 690. Even if it could be said to have that effect, there remained the fact issue as to whether Schell had actual or apparent authority to sell the property.
The motion for rehearing is overruled.