Ferguson v. Bishop, 57720

• Decision Date: 04 September 1979
• Docket Number: No. 57720,57720
• Citation: 258 S.E.2d 143,150 Ga.App. 469
• Parties: FERGUSON v. BISHOP et al.
• Court: Georgia Court of Appeals

Page 143

258 S.E.2d 143

150 Ga.App. 469

FERGUSON v. BISHOP et al.

No. 57720.

Court of Appeals of Georgia.

Argued April 10, 1979.

Decided May 17, 1979.

Rehearing Denied June 26, 1979.

Certiorari Denied Sept. 4, 1979.

Savell, Williams, Cox & Angel, Henry Angel, Michael Jablonski, Austin Catts, Atlanta, for appellant.

J. Thomas Whelchel, Moultrie, Hutto, Palmatary & Magda, Jack S. Hutto, Brunswick, Thomas S. Gray, Jr., Savannah, Taylor, Bishop & Lee, A. Blenn Taylor, Jr., Lane & Littlefield, Richard W. Littlefield, Jr., Rountree & Martin, George M. Rountree, Brunswick, Julian Toporek, Savannah, for appellees.

CARLEY, Judge.

On May 9, 1977, Ferguson filed an action against Golf Course Consultants, Inc., Atlantic Land & Development Corporation and The First National Bank of Brunswick to quiet title to certain property in Glynn County located on St. Simons Island. On June 10 Ferguson filed a second action against the above named defendants and James A. Bishop, John A. Stubbs, Stephen G. Jackson, Coastal Bank of Georgia, William W. Ullman, Ralph Wade, Joyce E. Kitchens, Marine Port Terminals, Inc., Taylor, Bishop & Lee, P. C., as Trustee for Marine Port Terminals, Inc., and Ruth K. Ullman alleging that they acted individually or jointly to defraud him by forging his name to a deed purporting to transfer the Glynn County property from him to Golf Course Consultants. At the conclusion of pre-trial discovery this complaint was amended by changing the allegations of fraud against some of the defendants to allegations of negligence and forgery.

Summary judgment was granted to Atlantic and First National in the quiet title action and to Bishop, Stubbs, Jackson, Coastal Bank, Atlantic Land & Development, Marine Port Terminals and Taylor, Bishop & Lee, P. C., in the action for damages.

Ferguson appealed to the Supreme Court enumerating as error the grants of summary judgment in the equity action. An appeal from the remaining order was taken to this Court but was transferred to the Supreme Court so that all related issues could be consolidated and decided together; that appeal, however, was returned to this court and we are, therefore, called upon in the instant case to decide whether the grants of summary judgment in the action for damages was error.

The Supreme Court, in affirming the grants of summary judgment in the quiet title action, held: "Ferguson and Ullman had an oral joint venture relating to the subject tract of land. Ferguson had bought the land in his own name from one of Ullman's corporations to help Ullman avoid foreclosure by a lender named Robinson. Ferguson and Ullman orally agreed for another Ullman corporation to develop the land, for Ullman to find a buyer, and for the proceeds to be divided between Ferguson and Ullman when Ullman found a buyer.

"Without first consulting with Ferguson, Ullman signed Ferguson's name on the instrument in question and thereafter told Ferguson about the sale. Ferguson was glad to hear about the sale and to receive a check from Ullman representing part of the proceeds of the sale. Ferguson deposited the proceeds of this check into his personal account and spent at least part of them. Ferguson thereafter wanted Ullman to pay him additional sums in return for his not raising any issue as to the signature by Ullman. When Ullman refused, this suit was filed. According to Ferguson's own testimony, he neither made an attempt to return the money nor did he tender it to the court.

"Equity will regard the actions of Ferguson in knowingly consenting to the sale in return for financial benefits as a ratification of the signature of Ullman on the deed. (Cit.) Ferguson cannot accept the proceeds of the sale, keep them, use them, decline to tender them back, and then expect a court of equity to set aside the deed from which he derived a profit. (Cits.)" Ferguson v. Golf Course Consultants, 243 Ga. 112, 252 S.E.2d 907 (1979).

The original action, to quiet title, was brought to determine who had title to property conveyed by a warranty deed alleged to be forged. As quoted above, the Supreme Court held that Ferguson, by his actions, ratified the placing of his name on the deed by Ullman. That decision, upholding the grant of summary judgment to two of the three defendants, put an end to Ferguson's...