Anderson v. Streck

• Decision Date: 08 February 1989
• Docket Number: No. 77528,77528
• Citation: 378 S.E.2d 526,190 Ga.App. 224
• Parties: ANDERSON et al. v. STRECK.
• Court: Georgia Court of Appeals

Page 526

378 S.E.2d 526

190 Ga.App. 224

ANDERSON et al. v. STRECK.

No. 77528.

Court of Appeals of Georgia.

Feb. 8, 1989.

Moore & Rogers, Robert D. Ingram, Marietta, for appellants.

Hudspeth & Benedict, Dean A. Williams, Norcross, Osgood A. Williams, for appellee.

BEASLEY, Judge.

The dispositive question in this appeal from the grant of summary judgment to defendant Streck and the denial of such to the plaintiffs Anderson is whether or not the evidence on summary judgment demanded the conclusion as a matter of law that Streck was as a bona fide purchaser without notice under the circumstances of certain real estate transactions.

The Andersons, doing business as Larry Anderson Grading, contracted with North River Builders, Inc. (NRB) to grade and erect a structure on certain of NRB's real property. NRB failed to pay them for the work and on March 17, 1986, they filed a claim of lien in the amount of $16,085. See OCGA § 44-14-361.

The Andersons remained unpaid and in January 1987 they filed suit against NRB. See OCGA § 44-14-361.1(a)(3). NRB responded and plaintiffs moved for summary judgment which was granted. On June 25, 1987, the court entered judgment against NRB for principal and interest in the amount of $21,221.12.

Meanwhile, in April 1987 Equitable Mortgage Resources, Inc., which held a security deed and agreement on the property, initiated foreclosure proceedings. Equitable advertised the foreclosure proceedings on April 9, 16, 23, and 30, 1987 in the official organ. The advertisement stated that the property would be sold subject to "all unpaid liens or judgments of record."

Equitable foreclosed on May 5. The next day a deed under power was executed transferring title from NRB to Equitable. It stated that the "sale was made after advertising the time, place and terms thereof in the Fulton Daily Reporter (sic), ..." Filing and recording occurred on May 22 and on June 12, Equitable conveyed the property by warranty deed to Streck.

The Andersons sued Streck alleging they continued to hold a valid lien against the property. They prayed for a special judgment establishing and foreclosing their lien in the principal amount of $16,085 plus all expenses of litigation including reasonable attorney fees and costs, and for execution permitting sale of the property in compliance with Georgia law governing non-judicial foreclosures.

The court concluded that there was no genuine issue of material fact as to Streck's status, when he acquired title, as being that of a bona fide purchaser for value without notice of the Andersons' lien.

The Andersons contend that the trial court erred in holding that Streck was a bona fide purchaser without notice, because the deed under power in the chain of title incorporated by reference notice of the foreclosure advertisement in the Fulton Daily Reporter, which advertisement stated that the property was being sold subject to all unpaid liens and judgments of record. Therefore, they argue, Streck had constructive notice of the lien. They contend further that the ruling as to Streck's status was error because Streck failed to offer any evidence that he lacked actual notice of the lien.

" 'The burden is on the party who moves for summary judgment to produce evidence which conclusively negates the essential elements entitling the respondent to recover under any theory that may be drawn fairly from the pleadings and the evidence. [Cits.].... There is no duty placed upon the plaintiff to produce evidence until the defendant's evidence pierces the plaintiff's pleadings and demands a finding in defendant's favor on the particular issue of fact made by the pleadings.' [Cits.]" Hill v. Goodyear Tire etc. Co., 187 Ga.App. 890, 371 S.E.2d 661 (1988).

In order to enforce their lien, plaintiffs had to show that Streck purchased the property with actual or constructive notice of the lien, because equity extends protection to a bona fide purchaser for value and without notice. OCGA §§ 23-1-19; 23-1-20; 23-2-34; ...