Allstate Ins Co v Demps, 133 Mich. App. 168, 174; 348 N.W.2d 720 (1984). For example, in Schomberg v Bayly, 259 Mich. 135; 242 N.W. 866 (1932), the Court found that a late filing of a certificate of title did not prevent the transfer of ownership even though it occurred beyond the statutorily required period. In that case, an automotive dealership sold a used car on May 27, 1923, without its certificate of title.
The judge did not rule on this objection. The Court of Appeals, on the authority of Schomberg v Bayly, 259 Mich. 135, 138; 242 N.W. 866 (1932), held that the inclusion of the objected-to phrase was reversible error. In Schomberg the assigned certificate of title was delivered to the purchaser a number of days after the vehicle itself was delivered; the automobile accident occurred six days after delivery of the certificate.
Endres v Mara-Rickenbacker Co, 243 Mich. 5; 219 N.W. 719 (1928); Michigan Mutual Auto Ins Co v Reddig, 129 Mich. App. 631; 341 N.W.2d 847 (1983). However, the courts have been reluctant to find lesser defects, even those involving statutory violations, fatal to the transfer of ownership. For example, in Schomberg v Bayly, 259 Mich. 135; 242 N.W. 866 (1932), the Court ruled that a purchaser's title was good as it regarded liability for an accident, even though delivery of title was not made within ten days after delivery of the automobile and was, therefore, not in literal compliance with the statute. More directly on point is Long v Thunder Bay Mfg Corp, 86 Mich. App. 69; 272 N.W.2d 337 (1978).
The trial court did not act upon the objection. In Schomberg v. Bayly, 259 Mich. 135 (1932), the Supreme Court considered an identical issue to that here raised in light of the then existing motor vehicle code. The pertinent statutory provision in Schomberg (1929 CL 4460) and the language used in the present motor vehicle code, MCLA 257.233(d); MSA 9.1933(d), regarding the time when title and physical possession of the vehicle must pass are identical; both require delivery of the assigned certificate of title to the purchaser "at the time of the delivery to him of such vehicle".
Until delivery of the assigned certificate, title does not pass, and no sale results; but delivery of the certificate of title properly assigned, notwithstanding such delivery is belated, passes title and consummates the sale." ( Schomberg v. Bayly (1932) 259 Mich. 135, 139 [ 242 N.W. 866, 867].) Neither party has referred the court to a precedent involving the nature and scope of the liability of the unregistered buyer or his insured.
See Mich. Stat. Ann. §§ 9.1933 et seq. The Supreme Court of that State has held that even where the purchaser has paid for the vehicle but has received no certificate of title required by the statute, the dealer is still the owner, Endres v. Mara-Rickenbacker Co., 243 Mich. 5 ( 219 NW 719), and until there is delivery of the assigned certificate of title to a used car, title does not pass and no sale is effected, Schomberg v. Bayly, 259 Mich. 135 ( 242 N.W. 866), for transfer of title simply cannot be effected without compliance with the statute. Drettmann v. Marchand, 337 Mich. 1 ( 59 N.W.2d 56). Incidentally, the same situation obtained under the law of Ohio where the car was physically located.
Taylor v. Burdick, 320 Mich. 25, 30-31, 30 N.W.2d 418, 421 (1948). The Michigan court has also, in several cases, refused to find that title to a vehicle had not passed where there were irregularities in its transfer of greater magnitude, in our view, than the defect asserted in the transfer before us. Schomberg v. Bayly, 259 Mich. 135, 242 N.W. 866 (1932); Fleckenstein v. Citizens' Mut. Auto. Ins. Co., 326 Mich. 591, 40 N.W.2d 733 (1950); Kube v. Neuenfeldt, 353 Mich. 74, 90 N.W.2d 642 (1958); Plasman v. Foremost Ins. Co., 365 Mich. 586, 595, 113 N.W.2d 906, 910 (1962). In Schomberg v. Bayly, it took occasion to rule that in some instances, "substantial, if not literal, compliance with the law" is sufficient to protect the seller.
Defendant had also indicated his acceptance of the gift by directing his brother to take out insurance on the car in defendant's name. These facts made defendant the owner under Michigan law. Mich.Stat.Ann. 1952, Vol. 8, Title 9, chap. 75(b), sec. 9. 1933, Comp. Laws Supp. 1952, § 257.233; Schomberg v. Bayly, 259 Mich. 135, 242 N.W. 866; Kruse v. Carey, 259 Mich. 157, 242 N.W. 873; Endres v. Mara-Rockenbacker Co., 243 Mich. 5, 219 N.W. 719. Therefore, under the authorities set out above, it is only necessary for me to find that the presumption of agency has not been rebutted by the evidence, and I so find.
"Delivery by seller of automobile of assigned certificate of title direct to branch office of secretary of State, accompanied by buyer's application for certificate of title, with payment of statutory fee, was substantial compliance with statute requiring transferee to present such certificate, assigned, to secretary of State." Schomberg v. Bayly (syllabus), 259 Mich. 135. "Title to motor vehicle passes from seller to purchaser when former delivers to latter assignment of certificate of title, and not before, and therefore purchaser who has not received assignment of certificate of title is not `owner,' although he may be in possession of car."
It has been repeatedly held that the provisions of the statute above quoted must be followed in the sale of an automobile, and that, unless the certificate of title is delivered as required, the seller remains the owner, and as such may be held liable for the negligence of the purchaser in the operation of the vehicle. See Endres v. Mara-Rickenbacker Co., 243 Mich. 5; Schomberg v. Bayly, 259 Mich. 135; Kimber v. Eding, 262 Mich. 670; Noorthoek v. Preferred Automobile Ins. Co., 292 Mich. 561. As before noted, defendant in the instant case insists that he followed the provisions of the statute and delivered the certificate of title to Ryder prior to the accident, while plaintiff insists that the testimony was such as to raise an issue of fact which the jury properly determined in his favor. 2 Comp. Laws 1948, § 256.103. — REPORTER.