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Trover. Bartow Superior Court. Before Judge Davis.
BELL, Chief Judge.
This is a trover suit in which plaintiff received at his election a judgment for money damages. The issue is the ownership of a 1968 Ford automobile. The case was tried before the judge without a jury upon a stipulation of facts as follows: On January 30, 1969, the defendant paid for and received possession of the car from a dealer, Shinall. The total consideration for the vehicle was $300 in cash, defendant's trade-in of another car valued at $300 and $2,275, the amount of a loan negotiated between the defendant and the First National Bank of Cartersville. The security transaction was evidenced by an instalment note and a bill of sale security agreement executed in favor of First National with the 1968 Ford as the collateral. Shinall, the dealer, had obtained ownership of this vehicle from another dealer, Adcock, who had acquired title to the vehicle from a Mrs. Whatley. At the time of his purchase, defendant executed an application for a Georgia title which he delivered to Shinall, who in turn submitted the title application, the note and security agreement to the First National Bank, along with the existing certificate of title and a bill of sale for this vehicle from Shinall to Cochran. The certificate of title was originally issued to Mrs. Whatley by the Commissioner of Revenue and it shows her transfer to Adcock and Adcock's transfer to Shinall. Adcock signed Mrs. Whatley's signature to her assignment under the authority of Mrs. Whatley's power of attorney to Adcock. On January 31, 1969, the First National Bank filed with the Georgia Department of Revenue, Motor Vehicle Unit, defendant's application for a title, along with the Whatley certificate of title and Shinall's bill of sale to defendant. On February 14, 1969, the Revenue Department returned the title application, the Whatley title certificate and the bill of sale from Shinall to defendant with the comment that a bill of sale from Mrs. Whatley to the party purchasing the Ford from her should be submitted and a complete chain of ownership should be shown. This notice was sent by the Revenue Department to either the First National Bank or Shinall. The defendant received none of these papers and had notice of their return. On March 4, 1969, the defendant purchased a 1969 Georgia license tag for the Ford. The stipulation further notes that if the Revenue Department sent the notice and other documents to the bank then the bank upon receipt of the documents turned the certificate of title over to Shinall for action in accordance with the comment on the return notice. On April 2, 1969, Shinall went to the plaintiff's home and offered to sell him a 1968 Ford which he described to plaintiff in general terms as to the color and equipment. The plaintiff at no time saw the car described by Shinall or the title to this vehicle. The only knowledge he had was the description given to him by Shinall. Shinall at the time of their meeting told the plaintiff that he would deliver to him on the next day the described 1968 Ford if plaintiff would sign a blank conditional-sale contract and a blank Georgia application for title form. The agreed consideration would be no more than $1,800. Plaintiff executed the conditional-sale contract in blank and a blank application for title form. Plaintiff went to the dealer's place of business on the following day where Shinall told him the car was not there; that the papers were not filled out; and for plaintiff to return the next day to receive delivery of the automobile. Plaintiff returned again on the next day and did not receive delivery of the car. Plaintiff did not see Shinall again. Without plaintiff's knowledge Shinall had completed the blank conditional-sale contract and the blank title application and submitted them to the Cartersville Bank. It developed that Shinall had assigned the conditional-sale contract to this bank with Shinall receiving $1,800 as a consideration, and also without plaintiff's knowledge, executed a bill of sale on April 2, 1969, which reflects that Shinall had sold a 1968 Ford to plaintiff which had the same motor number and description as the car that Shinall had delivered to defendant in January. This bill of sale, the conditional-sale contract, plaintiff's title application, as well as the Whatley certificate of title and Mrs. Whatley's power of attorney to Adcock authorizing him to transfer title to this automobile were placed in the hands of the Cartersville Bank. On April 10, 1969, plaintiff received a time payment book from the Cartersville Bank. The bank advised plaintiff that in view of their purchase of the conditional-sale contract and the receipt of the title application, both signed by plaintiff, the bank would hold him responsible for mak-
ing the monthly payments stipulated in the sale contract. The plaintiff's title application, along with the Whatley certificate of title, the power of attorney and the bill of sale were submitted to the Department of Revenue and on April 30, 1969, the Revenue Department issued a certificate of title listing plaintiff as the owner with the Cartersville Bank as the lienholder. The defendant has had exclusive possession of the car since January 30, 1969.
A resolution of this suit lies in an application of the facts to the provisions of Secs. 15 and 16 of the Motor Vehicle Certificate of Title Act. Ga. L. 1961, pp. 68, 78, 79 (Code Ann. 68-415a and 68-416a). Subsection (d) of Sec. 15 provides in material part that a transfer by an owner is not effective until the provisions of Sec. 15 and Sec. 16 have been complied with and no purchaser or transferee shall acquire any right, title or interest in a vehicle purchased unless he shall obtain from the transferor a certificate of title duly transferred in accordance with the provisions of Sec. 15. Section 16 concerns transfers to or from B dealer and provides that the dealer who buys a vehicle and holds it for resale need not apply for a new certificate of title but may retain the certificate delivered to him and upon transferring the vehicle shall execute the assignment and warranty of title by a dealer. Transfers of vehicles from a dealer to a third party shall otherwise conform to the provisions of Sec. 15 of the Act. Subsection (a) of Sec. 15 requires the owner upon delivery of the vehicle to execute an assignment and warranty of title duly notarized to the transferee in the space provided on the certificate of title or as the Commissioner prescribes and cause the certificate and assignment to be delivered to the transferee. While Shinall at the time of delivery of the car did not literally comply with the law by executing an assignment and warranty of title on the reverse of the Whatley certificate, he did substantially comply with this provision of the law by the execution of a bill of sale from himself to the defendant which in our view accomplishes the same purpose, The stipulation of facts is silent as to any actual physical delivery of the Whatley certificate and the bill of sale to the defendant. However, we conclude that there was a constructive delivery to the defendant. Defendant as required by Subsec. (b) of Sec. 15 executed an application for a new certificate of title in his name. These documents, the existing certificate of title, the title application, and the bill of sale, were delivered on behalf of defendant to the First National Bank, the lienholder, who caused them "to be mailed or delivered" to the Commissioner as required by Sec. 15 (c) and Sec. 22 of the Act. it is true that the Revenue Commissioner issued a certificate of title to plaintiff listing him as owner. A certificate of title, however, is prima facie evidence of the facts appearing in the certificate. Ga. L. 1961, pp. 68, 76 (Code Ann. 68-411a (c). Thus it is prima facie a fact that the plaintiff was the owner. By being only prima facie evidence of this fact, it can be contradicted by other evidence. Thornton v. Alford, 112 Ga. App. 321 (1) (145 SE2d 106). It is not disputed that Shinall was the owner at the time of defendant's purchase of the car. The actions taken by him and the defendant show at the very least a substantial compliance with Secs. 15 and 16 of the Act so as to effectively transfer ownership to defendant. Shinall's subsequent purported transfer of ownership to the plaintiff was a nullity as he had no property or interest in the car that he could pass to the plaintiff. The trial court erred in granting judgment to plaintiff. The judgment is
Reversed. Quillian and Whitman, JJ., concur.
J. M. Neel, Jr., Frank D. Smith, Jr., for appellee.
Hugh B. Pettit, Jr., for appellant.
Friday May 22 15:40 EDT

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