Harris Motors, Inc. v. Universal C. I. T. Credit Corp.

On Rehearing

FOSTER, Justice.

We are called upon to give expression to that feature of section 131, Title 47, Code, which is here controlling and provides that “if any such property is brought into this state while subject to such condition, the contract of sale * * * must within three months thereafter be recorded in the county into which the property is brought and remains”.

The automobile here in question was' brought into this State and into Mobile County on December 13, 1948, subject to such a contract. It was immediately, on the same day, sold to appellant for cash without notice. On December 28, 1948, appellant sold it to a resident of Mississippi, where the car was immediately carried. We have had no case construing the words “and remains” in that connection. We think it means that it applies to a county into which the property is carried from without the State with the present intention of it remaining there for an indefinite period. If it is sold in a county into which it is carried before the contract is there recorded, it must, for the contract to be effective as to such purchaser for value without notice, be recorded in that county' within three months after it is carried there if the purchaser has,.when he purchased, no intention of presently removing it to another county or other state, although it is thereafter removed into another county or state within said period of three months. We do not think that appellant’s rights are affected by the fact that on December 28, 1948, the car was sold to a resident of Mississippi by appellant, and that it was then carried to Mississippi and kept there, for there is nothing to indicate that it was not the purpose of -appellant when he bought the car to keep it for an indefinite period in Mobile County.

Appellee also renews its insistence on this application for rehearing that the defense provided by the statute must be specially pleaded. But this is an action of trover and the plea of not guilty puts in issue every matter which might be pleaded in bar except a release. Kelley v. Cassels, 226 Ala. 410, 147 So. 597; First National Bank of Gadsden v. Burnett, 213 Ala. 89, 104 So. 17; section 225, Title 7, Code.

There is no release here involved, either in terms or effect. '

The application for rehearing is overruled.

BROWN, LIVINGSTON, LAWSON, SIMPSON and STAKELY, JJ., concur.