.~

         THEATTORNEY                    GENERAL
                     OF    TEXAS




                   December 17, 1963


Honorable D. C. Greer                   Opinion No. C-194
State Highway Engineer
Texas Hi hway Department                Re: Review of Attorney General's
Austin 18 , Texas                           Opinion No. V-1049 (1950)
                                            in light of Section 46 of
                                            the Texas Probate Code as
                                            amended by the 57th Legis-
Dear Mr. Greer:                             lature and related questions.
          In your letter requesting an opinion from this office
upon certain questions you have stated that:
          "AttorneyGeneral Opinion No. V-1049
     rendered April 29, 1950, advised us not to
     issue a certificateof title to a motor vehicle
     in the name of multiple owners joined dlsjunc-
     tively as owners on the certificateof title
     by 'or' or by 'and/or.'
          II
           . . .
          "Section 46 of the Probate Code of Texas,
     1955 as amended by the 57th Texas Legislature,
     Regular Session, 1961 provides for severance
     of a deceased joint owners interest and for
     his interest to descend, and be vested in, the
     heirs or legal representativesof his estate.
     The Act provides, however, that joint owners
     may by written agreement provide that if either
     joint owner dies, his Interest will surxlve
     to the remaining joint owner or owners.
          In connectionwith the foregoing facts you have posed
the following questions:
          "1, Should we permit a written agreement,
     such as contemplatedin the above section of the



                            -934,-
Hon. D. C. Greer, page 2 (C- 194 )


    Texas Probate Code, to be filed with an application
    .fortitle of joint owners so that in the event
                                             . . of
    the death of either owner, the aurvlvlng Joint owner
    could claim title to the motor vehicle in accordance
    with the agreement on file by merely filing an ap-
    plication for certificateof title supported by an
    affidavit of fact similar to the type of affidavit
    specified In Section 35 P.C. 1436-l but without
    regard to the Interest of other heirs in the es-
    tate of the deceased owner.
        "2. If Question 1 Is answered in the affirma-
    tive could we also honor an agreement of joint
    owners If the agreement was not on file with us
    prior to the death of the joint owner in whose name
    title had previously been Issued.
        "3. Should we now issue a certificateof title
    to multiple owners of a vehicle and allow the words
    Ior1 or 'and/or'to appear thereon and subsequently
    allow either owner to claim or assign title without
    a release from the other."
         Section
         _ .     46 of the
                       - __Texas Probate Code, as amended in
1961, reads In part as follows:
        "Where two (2) or more persons hold an estate,
    real, personal, or mixed, jointly, and one (1)
    joint owner dies before severance,his Interest
    in said joint estate shall not survive to the re-
    maining joint owner or joint owners, but shall
    descend to, and be vested In, the heirs or legal
    representativesof such deceased joint owner in
    the same manner as If his interest had been severed
    and ascertained. Provided, however, that by an
    agreement In writinn of joint owners of property,
    %he Interest of any joint owner who dies may be
    made to survive to the surviving joint owner or
    joint owners, but no such agreement shall be ln-
    ferred from the mere fact that the property Is
    held in joint ownership. . . ." (Emphasisadded).
        Section 8 of Article 1436-1, Vernon's Penal Code, the
Certificateof Title Act, provides that:
        "The term 'SubsequentSale' means the bargain,
    sale, transfer, or delivery, with Intent to pass an
    interest therein, other than a lien, of a motor ve-
    h,iclewhich has been registered or licensed within
    this State or elsewhere, . . ." (Emphasisadded).

                          -935-
Hon. D. C. Greer, page 3 (C-~194.1


         Section 33 of Article 1436-1, provides that:
         'NO motor vehicle may be disposed of at
    subsequent sale unless the owner designated in
    the certificateof title shall transfer the
    certificateof title on form to be,prescribed
    by the Departmentbefore a Notary Public,. . .
    and no title to any motor vehicle shall pass
    or vest until such transfer be so executed."
    fEmphasis added).
         Section 35 of Article 1436-l provides that:
          "Wheneverthe ,ownershlpof a motor vehicle
     registered or licensed withln~this State is trans-
     ferred by operation of,law, as upon Inheritance,
    .devlse or bequest, bankruptcy,reclvershlp,judicial
     sale, or any other involuntarydivesture of owner-
     ship, the Department shall issue a new certificate
     of ,title,uponbeing provided with certified copy of
     the probate proceedings,If any (if no administration
     3s necessary, then upon affidavit showing such fact
     and all of the heirs at law and specificationby the
     heirs as to In whose name the certificateshall is-
     sue), OP order, OP bill of sale from the officer
     making the judicial sale. . .- (Emphasis added).
         Section 53 of Article 1436-l provides that:
          "All sales made In violation of this Act
     shall be void and no title shall pass until the
      rovlsions of this Act have been complied with."
      Emphasis added).
          It is most clear from a study of the foregoing pro-
visions contained in Article 1436-1, the Certificateof Title
Act, that an effort to transfer title to a motor vehicle wlth-
out complyingwith the provisions of Article 1436-l results in
a failure of legal title to pass. This position has uniformly
been followed by the courts of this State in such cases as
Wise v. Cain, 212 S.W.2d 880 (Tex.Clv.App.1948, error ref.
n.r.e.); Griffin v. Moon, 288 S.W.2d 543 (Tex.Clv.Ap, 1956);
ContinentalCredit Corp. v. Norman, 303 S.W.2d 449 'iTex.Civ.
A    1957          f        -Bryant,                  287 S.W.
2pdp+25(T;xP~~~'A~~.'l~;~j"''
          In view of the foregoing statutes and the decisions
of our courts, it would follow that an agreement between joint


                           -936-
Hon. D. C. Greer, page 4 (C- 194 )


 owners of a motor vehicle, pursuant to Section 46 of the Texas
 Probate Code, that the Interest of any joint owner who dies
may be made to survive to the surviving joint owner would not
 be sufficient in Itself to transfer legal title to the motors
yvehlcleto the surviving joint owner pursuant to Article 1436-
 1 in a situationwhereby the agreement between the joint owners
 Is merely presented or filed for the purpose of having a new
 certificateof title issued in the name of the surviving joint
 owner. This method of transferringownership In a motor vehicle
 is not authorized by either Section 33 or Section 35 of Article
 1436-l.
          However, this does not mean that Section 46 of the
Texas Probate Code, and Article 1436-l are in conflict, or
that agreementspursuant to Section 46 of the Texas Probate
Code involvingmotor vehicles are a nullity. In the case of
Elder Chevrolet Co. v. Bailey County Motor Co., 151 S.W.2d 938
(1941), the Court stated In its opinion that:
          "The transactionof March 18, 1940, between
     plaintiff and Bailey County Motor Company was ln-
     sufficient to vest the title to the 1939 model
     Ford In Bailey County Motor Company. For this
     purpose same was void and ineffective. This does
     not necessarilymean that it was entirely void and
     ineffective. An InefSectlveattempt to convey may
     in some cases be construed as a contract to convev.
     This transaction,In our opinion, was sufficientto
     bind the plaintiff so far as in its power to take
     the Initial steps necessary to enable Bailey County
     Rotor Company to obtain a certificateof tit1e. . . .
     (Emphasis added).
          II
               .   .   .



          "Rights plaintiff may have as to this motor
     car, but the right to foreclose a lien thereon It
     has not. It may have a right to recover the title
     and posaesslon of the car from defendant Bailey
     County Motor Company, but such right Is subject to
     an adjustment of equities. . . ." (Emphasis   acided

          In the case of Rush v. Smltherman, 294 S.W.2d 873
(Tex.Clv.App.1956, error ref. n.r.e.), the Court held that a
contract to sell and a sale of a motor vehicle without transfer
of a title certificateto the buyer was valid as between the
parties when the purposes of the Certificateof Title Act are
not defeated even though under Section 33 and Section 53 of


                             -937-
s   --




         Hon. D. C. Greer, page 5 (C- 194 ')     I,


         Article 1436-1, failure to transfer the certificaterenders the
         sale void.
                   Consequentlywe,are of the opinion that while an
         agreement made by joint owners of a motor vehicle pursuant to
         Section 46 of the Texas Probate Code may be sufficient to es-
         tablish ownership of a motor vehicle as between the joint
         owners and their heirs, such an agreement would not be suf-
         ficient itself to authorize a new certificateof title for the
         motor vehicle being issued in the name of the surviving joint
         owner. The new certificateof title could be issued only after
         the provisions set forth In either Section 33 or Section 35 of
         Article 1436-l have been complied with. We are of the further
         opinion that this would be true regardless of whether the agree-
         ment made by the joint owner of the motor vehicle, pursuant to
         Section 46 of the Texas Probate Code, was filed with the State
         Highway Department before or after the death of one of the joint
         owners of the motor vehicle.
                   Attorney General's Opinion No. V-1049 (1950), held that
         the State Highway Department is not authorized to issue a certl-
         ficate of title to a motor vehicle in the name of multiple own-
         ers,,jo;neddisjunctlvel$as owners on the certificateof title
         by or and by "and/or. In view of our foregoing opinion answer-
         ing your first two questions in the negative, and the authority
         cited in connection therewith,we are of the further opinion that
         the provisions of Section 46 of the Texas Probate Code do not
         than e or alter the holding in Attorney General's Opinion No.
         v-10&g (1950).
                              SUMMARY
                   An agreement made by joint owners of a motor
              vehicle, pursuant to Section 46 of the Texas Probate
              Code, would not in itself be sufficientto authorize
              the State Highway Department to Issue a new certlfl-
              cate of title to the motor vehicle in the name of
              the surviving joint owner.
                   The provisions of Section 46 of the Texas
              Probate Code do not alter or amend the holding in
              Attorney General's Opinion No. V-1049 (1950).
                                               Yours very truly,
                                               WAGGONER CARR
                                               Attorney General



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Hon. D. C. Greer, page   6 (C- 194 )


                                       By:
PB:wb:mkh                                    Assistant
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Norman Suarez
John Reeves
Murray Jordan
V. F. Taylor
APPROVED FOR THE ATTORm    GENERAL
BY: H. Grady Chandler




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