dissenting.
The facts in this case are distinguishable from Rockwin Corp. v. Kincaid, 124 Ga. App. 570 (184 SE2d 509). Here, the third party dealer, Hollowell, passed his title to the plaintiff-purchaser. At the time of the sale, the dealer assigned the manufacturer’s certificate of origin, giving the plaintiff title to the vehicle. An examination of the manufacturer’s certificate of title shows that the dealer, Hollowell, acquired the title from still another dealer in Chattanooga, Tennessee, on June 21,1973, one day prior to the assignment to plaintiff. From this evidence, the only inference that can be drawn is that the truck was always physically located in Chattanooga. Thus, Hollowell at best had only constructive possession of the vehicle at the time of sale to plaintiff in Decatur, Georgia, or at any time prior to this sale. Thereafter, Hollowell had neither actual nor constructive possession and no right to possession. As a part of the sales price of the vehicle the invoice reflected that a part of the purchase price included a "Holmes 500 wrecker.” It is undisputed that Ernest Holmes, Inc. of Chattanooga, Tennessee, acquired the actual possession of the wrecker for the purpose of mounting the wrecker equipment. The evidence is also undisputed that the Holmes firm had possession of the truck at the time of the purported second sale of the vehicle to defendant. At that time Hollowell had no possession whatsoever and no title to convey. Therefore, he conveyed nothing to the second purchaser-defendant. There is absolutely no evidence from which it can be inferred that Ernest Holmes, Inc. (Chattanooga) was the servant or agent of Hollowell. The only inference that can be drawn is that Holmes, Inc. was an independent contractor. Actual possession by Holmes, Inc. under the facts does not grant any type of possession to Hollowell. Thus there was no entrusting within the meaning of UCC § 2-403 (2) (3) (Code § 109A-2-103 (2) *88(3)). Further, the plaintiff obtained a certificate of title from the State of Georgia to this vehicle. True, it was obtained after the plaintiff had received knowledge that the vehicle had been resold to the second purchaser-defendant. The fact that plaintiff may have taken an unreasonable time to record his title and was not diligent in obtaining possession or delivery of the wrecker from Ernest Holmes, Inc. has no effect whatsoever on the legal status of the property. The majority opinion attempts to apply the doctrine of laches because of plaintiff’s lack of diligence. However, this doctrine has no application in this type of case. An owner of personalty can allow the third person to retain possession of property which he owns for as long as he wants. A Georgia certificate of title is prima facie evidence of the facts appearing on it. Code Ann. § 68-411a. Even though this case is appealed by the defendant-appellant on the grant and the denial of motion for summary judgment, the defendant has not contradicted nor shown a factual issue with respect to plaintiff’s title. Obviously, not being able to disprove the plaintiffs title, the defendant could not prove his own.
The entrusting provision of the Uniform Commercial Code was never intended to apply to a case with a factual background such as this. It applies generally to situations such as those in Rockwin and in Christopher v. McGehee, 124 Ga. App. 310 (183 SE2d 624). In both those cases a dealer was given possession of vehicles by a third person with limitations on the dealer’s authority to sell. If the majority view prevails it will expose any person to the loss of his property in two common situations which occur by the hundreds every day: (1) Where one gives possession of his property to a dealer (such as an automobile dealer) for repairs: (2) or allows retention of possession by a dealer who has passed title for what is commonly called "dealer preparation.” This is not the intention of this part of the Uniform Commercial Code. The trial court’s grant of the first purchaser’s (the plaintiff’s) motion for summary judgment should be affirmed.