O.C.G.A. § 40-3-32 (2019)

Annotations

Law reviews. For article surveying insurance law in 1984-1985, see 37 Mercer L. Rev. 275 (1985).

JUDICIAL DECISIONS Editor’s notes. - In light of the similarity of the statutory provisions, decisions under former Code 1933, § 68-207 are included in the annotations for this Code section. Necessity of compliance with registration and transfer provisions. - It was the intent of the legislature that compliance with the provisions of Ga. L. 1961, p. 68 (see now O.C.G.A. § 40-3-31 et seq.), respecting the registration and transfer of titles to automobiles coming

under its provisions, be essential to vest title to an automobile as manifest by the language of Ga. L. 1961, p. 68, § 15 (see now O.C.G.A. § 40-3-32). Wreyford v. Peoples Loan & Fin. Corp., 111 Ga. App. 221, 141 S.E.2d 216, 1965 Ga. App. LEXIS 927 (1965). Purchaser of vehicle on which certificate not previously issued. - Former § 40-3-31 (see now O.C.G.A. § 40-3-32) cannot serve to deny passing of right, title, or interest to a purchaser of a

vehicle on which a certificate of title had not previously been issued, especially in light of the statutory scheme which contemplated a possible considerable lapse of time between the actual purchase of a new vehicle and the issuance of the certificate of title. Owensboro Nat’l Bank v. Jenkins, 173 Ga. App. 775, 328 S.E.2d 399, 1985 Ga. App. LEXIS 1688 (1985); First Nat’l Bank v. Atlanta Classic Cars, Inc., 184 Ga. App. 784, 363 S.E.2d 16, 1987 Ga. App. LEXIS 2406 (1987); Bank S. v. Zweig, 217 Ga. App. 77, 456 S.E.2d 257, 1995 Ga. App. LEXIS 364 (1995). Delivery of sworn assignment and warranty of title. - Upon transfer of ownership it is required that transferor deliver sworn assignment and warranty of title to transferee on the certificate of title and until this is done, except as between the parties, the transferee obtains no interest in the vehicle. Farmers & Merchants Bank v. Holloway, 159 Ga. App. 645, 284 S.E.2d 661, 1981 Ga. App. LEXIS 2785 (1981). Evidence of ownership. - Certificate of title is prima-facie evidence of title ownership and possession alone will not suffice. Flatau v. Bank of Banks County (In re Stewart), 9 B.R. 32, 1980 Bankr. LEXIS 4578 (Bankr. M.D. Ga. 1980). Mobile home falls within the provisions. Rockwin Corp. v. Kincaid, 124 Ga. App. 570, 184 S.E.2d 509, 1971 Ga. App. LEXIS 1028 (1971). Transfer of mobile home by real estate warranty deed. - When a motor home is not fixed to the earth so as to irrevocably lose the mobile home’s identity as a vehicle and, at the time the mobile home is placed upon the real estate, it is the intent of the seller, the purchaser, and the land seller that the mobile home will remain as personalty, the Motor Vehicle Title Act controls and requires a proper transfer of title to vest any interest. There can be no transfer of the personalty through the real estate warranty deed, especially when the property owner has constructive notice of a lienholder’s interest in the mobile home. Anderson v. Kensington Mtg. & Fin. Corp., 166 Ga. App. 604, 305 S.E.2d 128, 1983 Ga. App. LEXIS 2265 (1983). Applicability dependent on prior issuance of certificate. - Ga. L. 1961, p. 68, § 15 (see now O.C.G.A. § 40-3-32)

only applies when vehicle has previously been issued certificate of title by state revenue commissioner. Rockwin Corp. v. Kincaid, 124 Ga. App. 570, 184 S.E.2d 509, 1971 Ga. App. LEXIS 1028 (1971); Wielgorecki v. White, 133 Ga. App. 834, 212 S.E.2d 480, 1975 Ga. App. LEXIS 2307 (1975). Transferors and transferees excepted. - Even though the provisions of Ga. L. 1961, p. 68 may be mandatory in some situations, transactions between the parties themselves, that is, the transferors and the transferees, are excepted from those provisions. Allen v. Holloway, 119 Ga. App. 676, 168 S.E.2d 196, 1969 Ga. App. LEXIS 1210 (1969). Strict compliance when third party rights involved. - As between parties or when third party interests are not involved, substantial compliance with the provisions of the law may be sufficient, but the language of Ga. L. 1961, p. 68, § 15 (see now O.C.G.A. § 40-3-32) is clear that when third party rights are involved, this is not the case. Flatau v. Bank of Banks County (In re Stewart), 9 B.R. 32, 1980 Bankr. LEXIS 4578 (Bankr. M.D. Ga. 1980). As to third parties, essential that transfer be completed. - Ga. L. 1961, p. 68, § 15 (see now O.C.G.A. § 40-3-32) recognizes that as between the parties an ownership may change hands without the necessity of transferring a title certificate by the seller and obtaining a new one in the name of the purchaser; however, as to third parties who may acquire an interest, it is essential that the title transfer be completed. Canal Ins. Co. v. Woodard, 121 Ga. App. 356, 173 S.E.2d 727, 1970 Ga. App. LEXIS 1222 (1970). Sale held complete without actual passing of certificate. - Evidence authorized the finding by the fact finder that, pursuant to the parties’ understanding, the title to a motor vehicle passed to the buyer at the time the buyer received physical possession with the seller holding the certificate as security only for the final payment of $50.00, which document was to be delivered at such time and place as the indebtedness was paid, and that, consequently, the sale was complete and the seller’s uninsured

MOTOR VEHICLES & TRAFFIC

motorist coverage on the vehicle was no longer in effect. Stone v. Nolan, 171 Ga. App. 644, 320 S.E.2d 781, 1984 Ga. App. LEXIS 2306 (1984). Evidence showed that a car dealership sold the dealership’s interest in a car to the buyer before a collision where the father signed purchase and financing documents relating to the car sale, a credit company financed the purchase in the buyer’s name and paid the dealership the car’s purchase price, and the buyer’s daughter took possession of the vehicle, regardless of whether an application for a certificate of title was filed before or after the collision. West v. Village Ford-Mercury, Inc., 256 Ga. App. 18, 567 S.E.2d 355, 2002 Ga. App. LEXIS 811 (2002). While a buyer of a motor home on consignment was entitled to summary judgment after the dealer never paid the consignors, when the consignors refused to execute an assignment and warranty of title when the buyer sought those documents, the buyer was entitled to damages, including reasonable attorney’s fees under O.C.G.A. § 40-3-32(a). Smith v. Hardeman, 281 Ga. App. 402, 636 S.E.2d 106, 2006 Ga. App. LEXIS 1119 (2006). Automobile broker. - Automobile broker authorized by owner to sell vehicle was not third party within the meaning of former § 40-3-31 (see now O.C.G.A. § 40-3-32). McDowell v. Owens, 170 Ga. App. 421, 317 S.E.2d 275, 1984 Ga. App. LEXIS 1917 (1984). Gifts may convey title. - There is nothing in Ga. L. 1961, p. 68 (see now O.C.G.A. § 40-3-31 et seq.) which prevents gifts from conveying title as between the legal representative of a deceased transferor and the transferee. Allen v. Holloway, 119 Ga. App. 676, 168 S.E.2d 196, 1969 Ga. App. LEXIS 1210 (1969). Vehicle’s registration in name of person holding unassigned certificate. - It is presumed, unless rebutted, that where a person holds an unassigned certificate of registration on a vehicle, the registration of the vehicle is still in the person’s on the records of the State Revenue Commission. Jones v. State, 83 Ga. App. 301, 63 S.E.2d 414,

1951 Ga. App. LEXIS 856 (1951) (decided under former Code 1933, § 68-207). Equitable interest in vehicle has priority over judicial lien. - Trustee, in the trustee’s capacity as a hypothetical judicial lien creditor under 11 U.S.C. § 544(a)(1), did not prevail over an equitable interest in an automobile since the certificate of title was issued in the debtor’s name and the name of the party claiming the equitable interest was not listed on the certificate of title. Wenco Indus., Inc. v. Stalzer (In re Davis), 165 B.R. 327, 1994 Bankr. LEXIS 430 (Bankr. N.D. Ga. 1994). Equitable interest in vehicle has priority over interest asserted by trustee in bankruptcy. - Creditor that had an equitable priority interest in the vehicles that had been owned by a debtor, pursuant to an agreement to purchase the creditor’s business, had an interest that was superior to a trustee’s authority to avoid a lien interest pursuant to 11 U.S.C. § 544 and the creditor was entitled to assert a claim in the sale proceeds of the vehicles. BCC Sys. v. Brooks (In re BCC Sys.), No. 05-84208-CRM, 2008 Bankr. LEXIS 1906 (Bankr. N.D. Ga. Apr. 18, 2008). Sale complete except for compliance with recording and insurance provisions. - When a seller delivered possession of the automobile to the buyer and the transaction was complete as between them, even though compliance had not yet been made with the applicable recording and insurance provisions, the buyer was the “owner” of the automobile and the buyer alone, and not the seller or the seller’s insurer, was liable to a third party for injuries sustained in an accident while the buyer was driving the automobile. American Mut. Fire Ins. Co. v. Cotton States Mut. Ins. Co., 149 Ga. App. 280, 253 S.E.2d 825, 1979 Ga. App. LEXIS 1818 (1979). When an auto insurance policy required the insured to notify the insurer and pay an additional premium within 30 days of becoming the owner of a vehicle, the key to coverage under the policy was the date the insured became the owner, not the date the car came into service as a means

of transportation, nor the date of issuance of the certificate of title. Noakes v. Atlanta Cas. Cos., 215 Ga. App. 398, 450 S.E.2d 861, 1994 Ga. App. LEXIS 1246 (1994). Ownership proved although vehicle not registered. - Claimant who appeared and demanded possession as owner of an automobile which was the subject of a civil forfeiture action established a sufficient ownership interest as against the state by proof of claimant’s payment of valuable consideration and receipt of the certificate of title from the transferor, even though the claimant failed to register the vehicle. State v. Banks, 215 Ga. App. 828, 452 S.E.2d 533, 1994 Ga. App. LEXIS 1390 (1994). Automobile dealer relieved of duty of securing title in own name. - Former § 40-3-32 (see now O.C.G.A. § 40-3-33) relieves a dealer in automobiles of the duty imposed upon other transferees by Ga. L. 1961, p. 68, § 15 (see now O.C.G.A. § 40-3-32) of securing a new title certificate from the state revenue commissioner in the name of the dealer. Wreyford v. Peoples Loan & Fin. Corp., 111 Ga. App. 221, 141 S.E.2d 216, 1965 Ga. App. LEXIS 927 (1965). Transfer to otherwise conform with section. - While an automobile dealer, in the event of a purchase by the dealer of a vehicle which the dealer holds for resale, does not have to apply for and receive a title in the dealer’s name in order to be protected against an unperfected security interest, the transfer to the dealer shall otherwise conform with the provisions of Ga. L. 1961, p. 68, § 15 (see now O.C.G.A. § 40-3-32). Frank Jackson Motors, Inc. v. Mortgage Enters., Inc., 124 Ga. App. 798, 186 S.E.2d 464, 1971 Ga. App. LEXIS 1109 (1971). Requirements for perfecting dealer’s title. - In order for the “title” of the dealer to be perfected, the dealer must be in possession of a certificate of title upon which, or by separate paper, an assignment and warranty of title has been

subscribed and sworn to by the transferor before an officer authorized by law to administer oaths in the state. Farmers & Merchants Bank v. Holloway, 159 Ga. App. 645, 284 S.E.2d 661, 1981 Ga. App. LEXIS 2785 (1981). Substantial compliance. - When the dealer, 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 certificate, but substantially complied by the execution of a bill of sale from the dealer to the purchaser, whereupon the purchaser executed an application for a new certificate of title in the purchaser’s name, and these documents (the existing certificate of title, the title application, and the bill of sale) were delivered on behalf of the purchaser to the lienholder, who caused the documents to be mailed or delivered to the commissioner, title of the automobile passed to the purchaser, and the dealer’s subsequent purported transfer of ownership of the automobile was void. Cochran v. Harris, 123 Ga. App. 212, 180 S.E.2d 290, 1971 Ga. App. LEXIS 1167, dismissed, 227 Ga. 638, 182 S.E.2d 121, 1971 Ga. LEXIS 801 (1971). Trial court erred in denying the state’s in rem forfeiture action and adjudicating a husband an innocent owner of a vehicle the state seized when his wife was arrested for possessing methamphetamine and other crimes because the husband lacked title to the car, and any other interest he could have had was in community with the wife since the husband assigned his interest in the car to the wife and the certificate itself listed the purchase date as one day before the seizure; thus, pursuant to the Motor Vehicle Certificate of Title Act, O.C.G.A. § 40-3-32, the assignment to the wife was completed one day before the seizure, and the husband had no ownership interest in the vehicle on that day. State v. Centers, 310 Ga. App. 413, 713 S.E.2d 479, 2011 Ga. App. LEXIS 586 (2011).

OPINIONS OF THE ATTORNEY GENERAL Certificate of title on older model vehicles. - Neither Ga. L. 1961, p. 68,

§ 15 (see now O.C.G.A. § 40-3-32) nor Ga. L. 1961, p. 68, § 16 (see now O.C.G.A.

MOTOR VEHICLES & TRAFFIC

§ 40-3-33) requires a certificate of title on older model vehicles. 1962 Ga. Op. Att’y Gen. 306. RESEARCH REFERENCES Am. Jur. 2d. 7A Am. Jur. 2d, Automobiles and Highway Traffic, § 45. C.J.S. 60 C.J.S., Motor Vehicles, § 75 et seq. U.L.A. Uniform Motor Vehicle Certificate of Title and Anti-Theft Act (U.L.A.) § 14.

ALR. Civil rights and liabilities as affected by failure to comply with statute upon sale of motor vehicle, 37 A.L.R. 1465; 52 A.L.R. 701; 63 A.L.R. 688; 94 A.L.R. 948; 58 A.L.R.2d 1351.