¶1The transaction between Sumner and Smith was not a bailment, but amounted to a conditional sale. The seller did not retain the possession of the property, but was to retain the title to the same, after he had transferred the possession to the buyer. It is well established that when there is a condition precedent attached to a sale, the title will not pass until the condition is performed, unless there be a waiver of its performance by the vendor. Caraway v. Wallace, 2 Ala. 542. But the great mark of ownership of personal property is possession ; and when a contract is made by which it is intended that the property should be apparently in one, while it is in fact in another, the world has a right to suppose that the one in possession is the owner; and such a contract cannot be set up to the prejudice of bond fide creditors and purchasers without notice. As has justly been said, “ such contracts are out of the usual course of business, unnecessary, and directly tend to the injury of those who ‘are not in the secret.” Martin v. Mathiot, 14 Serg. & Rawle, 214.
¶2In the case before us, the defendant in the court below, after the plaintiff had closed his evidence, testified in his own behalf, that he had bought the machine sued for from “ one Dunn,” at Patona, in Calhoun county, where Dunn lived at the time, and paid him therefor the sum of sixty-five dollars in cash. This' was all the evidence introduced by the defendant. The *96court charged the jury that the plaintiff was not entitled to recover unless the instruments evidencing the contract had been properly recorded in the office of the probate court of Calhoun county. In this the court erred. It was incumbent upon the defendant to show that he was a bond fide purchaser without notice. This he failed to do ; and for the above named error of the court the judgment must be reversed and the cause remanded.