dissenting.
I respectfully dissent from the opinion of the majority and would affirm the judgment of the trial court. The heart of Bruckner’s first point is that the sales by Module were void as to Bruckner because they violated the Certificate of Title Act (the Act), Tex.Rev. Civ.Stat.Ann. art. 6687-1 (Vernon 1977 & Supp.1995), specifically section 33 of that Act. Bruckner correctly observes that failure to register or obtain a certificate of title does not invalidate a “first sale” under the Act. Motor Investment Co. v. Knox City, 141 Tex. 530, 174 S.W.2d 482, 486 (1943).
I agree with the majority that the sale by Module to Estelline was a first sale and as such failure to register or obtain a certificate of title for that vehicle did not violate the Act. I cannot, however, agree with the majority’s conclusion that the contract between Module and Swisher made Swisher an “owner,” and was, impliedly, a first sale. From this the majority must draw the conclusion that a question of fact exists about whether the sale from Module to Farm Credit1 was a “subsequent sale” and consequently violative of the Act.
There are two reasons I am unable to accept the majority’s reasoning. First, the contract between Module and Swisher was not a sale. This May 29,1992 contract established a purchase price of $117,500 with delivery due on October 1, 1992. Swisher paid only $23,500 of the purchase price. Just over one month before delivery was due under this contract, Module entered into another contract with Farm Credit to sell the same truck on essentially the same terms and with delivery due on October 15, 1992. I do not believe that the executory contract between Module and Swisher made Swisher an “owner” as defined by the Act. Swisher did not, and could not, claim title to, or have a right to operate pursuant to a lien on the truck based on this executory contract. Without such a claim or right, Swisher did not become an “owner” under the Act.
*84Secondly, the Act does not define “subsequent sale” as any sale after a first sale but rather as any sale “after [the vehicle] has been registered or licensed.” The opinion in Motor Investment broadened this definition to include the sale of a vehicle that “should, in law, have been registered.” 174 S.W.2d at 486. It is undisputed that the truck was not registered before the sale to Farm Credit. Nor was Swisher required to register the truck before Module’s sale of it to Farm Credit because Swisher could not use or intend to use the truck upon the public highways before it was delivered. See Tex.Rev. Civ.Stat.Ann. art. 6675a-2(a) (Vernon Supp. 1995) (defining vehicles required to be registered). I believe that Farm Credit established that the sale by Module and purchase by it was a first sale and not a subsequent sale in violation of the Act. I would overrule appellant’s first point of error.
In response to Bruckner’s second and third points, the majority begins by correctly stating the dispositive question as whether material issues of fact exist on the question of whether Farm Credit or Estelline knew that their purchases were in violation of Bruckner’s ownership rights. However, in addressing this question the majority discusses only evidence supporting appellees’ knowledge of the existence of Bruckner’s ownership rights, rather than evidence that the sales violated those rights.
For example, the majority treats as con-tradictoiy the statements in Charles Moore’s affidavit that Estelline made demand on Bruckner for delivery of the Manufacturer’s Certificate of Origin and that neither he nor Estelline “had or now had any knowledge” that the sale was in violation of the rights of Bruckner. I fail to perceive the contradiction implied by the majority’s opinion. Even if it were established as a matter of law that Estelline and Farm Credit knew that Bruckner owned the trucks, in my view that is not evidence that they knew the sales were in violation of Bruckner’s ownership rights. Appellees could reasonably believe that Module held the trucks as Bruckner’s consignee.
The other evidence cited by the majority, the affidavits of Mike Carlisle and James Westbrook, can only show knowledge of Bruckner’s ownership and not that Module’s sales were violative of Bruckner’s rights. Likewise, I cannot accept that the Body Builder’s receipt could be evidence of appel-lees’ knowledge that the sales were in violation of Bruckner’s rights when there is nothing to show that appellees were aware of the existence or contents of that document. I would overrule appellant’s second and third points of error and affirm the judgment of the trial court. To the majority’s failure to do so, I respectfully dissent.
. Possibly explaining appellant's belief that the sale to Farm Credit was a subsequent sale is the statement in appellant’s brief that "Swisher entered into a sales contract with [a]ppellee Farm Credit.” The contract by which Farm Credit agreed to purchase the truck in issue was reduced to writing and appears in the record. That contract clearly states that it is between Module and Farm Credit.