majority"> GARDNER, J.

An examination of the statement of the case will disclose that the sole contest in this cause arises over the claim of title asserted by respondent Mary E. May, appellant here, to a portion of the land involved in the suit. It is without dispute that in 1893 the respondent M. H. May 'executed a deed to his wife, Mary E. May, conveying the property to which she asserts ownership, and that said conveyance contained covenants of warranty as to the title, and that at the time of the execution the grantor did not have the title to the same, but was in possession of the lands, and in subsequent years secured warranty deeds thereto.

[1] Under the covenants of warranty, therefore, in the deed to said Mary E. May the title vested in her upon the due execution of the deeds to her grantor. There is nothing in the record indicating in the least any fraudulent intent in the execution of the deed to the said Mary E. May in 1893, and nothing appears by way of impeachment of the bona fides of this transaction.

Some of the argument of counsel for appellee is devoted to a consideration of the question as to whether or not the instrument of October, 1893, executed to the said Mary E. May by M. H. May, is a will or a deed; but we are of the opinion that .it so clearly appears that this instrument is a deed that this question requires no specific treatment. The original complainant was a simple contract creditor, the said M. H. May becoming indebted to him upon an open account which began in 1894.

[2] The deed to said Mary B. May was not recorded until after the judgment against M. H. May was recovered, but the failure to record the same is rested upon ignorance of the necessity therefor. There is no evidence in the least tending to show any- fraudulent withholding of the deed from record, and it does not seem to be insisted by counsel for appellee that cases involving this principle (Middlebrooks v. Moore-Handley Co., 78 South. 829; 1 Mathews v. Carroll, 195 Ala. 501, 70 South. 143) have application here.

[3] As this deed was not of record at the time of the recovery of the judgment by the original complainant against M. H. May, and the purchase of the lands involved at execution sale, the said complainant would therefore be protected under section 3383 of the Code of 1907, if without notice of the execu-' tion of said deed; and the first question of fact to arise relates to this question of notice. We need not discuss the evidence-upon this point (the outline of which appears in the statement of the case). Suffice it to say that, after a very careful consideration thereof, we have reached the conclusion that the preponderance of the evidence sustains the contention of respondents that the said Walter C. Chiles was given such notice prior to the institution of his suit against respondent *226 M. H. May as would preclude him from the protection of the above-cited statute.

[4] Counsel for appellee strenuously insist, however, that in view of the proof tending to show that the deed to respondent Mary E. May was not on record (the record disclosing the title to be in the said M. H. May, who was shown to be in possession of the land, and evidence tending to show a claim of ownership thereof), and further that the said Mary E. May knew her husband was trading with the said Walter G. Chiles and that the said May obtained credit from said Chiles on the faith of said ownership, the said Mary E. May is therefore estopped from setting up her title against the said creditor of her husband citing, among other authorities, Goldberg v. Parker, 87 Conn. 99, 87 Atl. 555, 46 L. R. A. (N. S.) 1097, Ann. Cas. 1914C, p. 1059. This argument, however, is, of course, based upon the assumption that the creditor extended the credit in reliance upon the husband’s apparent title. Note to Goldberg v. Parker, Ann. Cas. 1914C, 1070.

We cannot read the testimony of the original complainant and be persuaded that in the extension of credit to the said M. I-I. May he rested reliance upon the apparent ownership of the land here involved. Speaking to this question, the said Chiles testified:

“I never took a mortgage on any land from the defendant M. H. May. I have trusted him on his face. I sold him the goods for which he became indebted to me, and which indebtedness is the basis of the judgment which I recovered against him, on which was issued the execution levied on the lands described in the bill, on his face.”

The witness further testified that he had no occasion to investigate or ascertain whether the property belonged to Mr. or Mrs. May. As to whether or not, therefore, the principle of equitable estoppel, insisted upon by counsel for appellee (aside from the question just discussed), would have application under the facts as found in this record, need not be here determined, in view of the conclusion which we have reached that the original complainant did not extend credit to the husband upon his apparent ownership of the property here involved.

We do not therefore find any principle of law, under the findings of fact above indicated, which would, in our opinion, justify an annulment of the title acquired by respondent Mary E. May under her warranty deed.

The conclusion which we have reached is not in harmony with that of the court below, and the decree of the trial court will therefore he reversed, and the cause remanded for further proceedings in accordance with the views here expressed.

Reversed and remanded.

SAYRE* SOMERVILLE, and THOMAS, JJ., concur.

201 Ala. App. 451.

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