Glover v. Ware

• Decision Date: 15 January 1999
• Docket Number: No. A98A2266, No. A98A2267.
• Parties: GLOVER v. WARE et al. Ware et al. v. Glover.
• Court: Georgia Court of Appeals

510 S.E.2d 895

236 Ga. App. 40

GLOVER v. WARE et al.

Ware et al. v. Glover.

Nos. A98A2266, A98A2267.

Court of Appeals of Georgia.

January 15, 1999.

Clarence H. Glover, Jr., pro se.

Barry L. Katz, Atlanta, for appellant.

Kidd & Vaughan, David N. Schaeffer, Atlanta, for appellees.

ELDRIDGE, Judge.

Henry Hall Ware, and Margaret Ware Deimling, individually and as Executors on behalf of the Estate of Henry H. Ware, Jr. ("plaintiffs") obtained a final judgment against Clarence H. Glover, Jr. ("defendant"). See Glover v. Ware, 222 Ga.App. 297, 474 S.E.2d 1 (1996).

On April 25, 1997, plaintiffs had the Fulton County Sheriff's Department levy against certain property owned by the defendant in the City of Alpharetta, Fulton County, Georgia, for purposes of a judicial levy, execution, and sale. In 1980, defendant and his former wife, Helen Glover (now Helen Belisle) ("Glover"), purchased 6.2 acres of land with a house at 430 Thompson Street, Alpharetta Fulton County, as tenants in common. On July 1, 1994, the defendant and Mrs. Glover were divorced. During the litigation with the plaintiffs in this case, the defendant sought to convey his undivided half interest to Glover. In September 1992, while the property was in the name of Glover alone, Glover had the house and one acre surrounding it refinanced and gave a deed to secure debt on this one acre in her name alone. Because of the fraudulent conveyance to her, Glover was made a party to the lawsuit between the plaintiffs and the defendant; the judgment required that she reconvey to the defendant his one-half undivided interest not only in the house and one acre but also the remainder of the 5.211 acres that was not subject to the deed to secure debt. During the ownership by defendant and Glover, the entire tract of land was annexed into the City of Alpharetta. Thus, the remaining 5.211 acres is not incumbered with any deed to secure debt.

Case No. A98A2266

1. Defendant's enumerations of error 1, 2, 4, and 5 raise the same issue in different forms, i.e., that the trial court erred in allowing the levy, sale, and execution because it "partitioned" or subdivided the property in violation of state and local law regarding subdivision of property and that the plaintiffs lacked standing to partition the property. We do not agree.

Defendant begs the question when asserting that execution and sale will partition or subdivide the property in violation of state and local laws; the real question deals with what is sold and conveyed under a sheriff's execution and sale. Defendant's position that the conveyance, either by deed or by judicial execution and sale of an undivided one-half interest as a tenant in common, constitutes a subdivision or partitioning of the entire 5.211 acres or that the one-half undivided tenancy in common interest in the 5.211 acres cannot be conveyed separately from the 6.2 acres without constituting a partitioning or subdivision of the tract is contrary to Georgia law, because what is conveyed at execution and sale is only the interest that the defendant possesses at the time of sale.

Under Georgia law, an undivided interest in real property may be created into as many fractional shares of the whole property as the grantor or grantors desire, because it is a fractional ownership interest in the whole and not a division of the land into discrete parts, i.e., subdivision or partitioning. See OCGA § 44-6-120; Hasty v. Wilson, 223 Ga. 739, 745-746(2), 158 S.E.2d 915 (1967); Whitfield v. Means, 140 Ga. 430, 78 S.E. 1067 (1913). "[A] tenancy in common is created wherever from any cause two or more persons are entitled to the simultaneous possession of any property. Tenants in common may have unequal shares, but they will be held to be equal unless the contrary appears. The fact of inequality shall not give the person holding the greater interest any privileges as to possession which are superior to those of the person owning a lesser interest so long as the tenancy continues." OCGA § 44-6-120; see also Mills v. Williams, 208 Ga. 425, 67 S.E.2d 212 (1951); Anderson v. Lucky, 18 Ga.App. 479, 89 S.E. 631 (1916). In short, an undivided interest in a tenancy in common is just such ownership interest as would result from sale of the defendant's interest, because any purchaser or purchasers would acquire only defendant's undivided one-half interest in a tenancy in common and would stand in his shoes. Under OCGA § 44-1-2(a)(3), "the term `realty' or `real estate' means: [a]ny interest existing in, issuing out of, or dependent upon land or the buildings thereon."

The deed to secure debt conveyed to the lender the legal title with the right of redemption of the title, a beneficial interest, in the owner-borrower upon complete satisfaction of the obligation. Repayment and cancellation of the deed to secure debt or foreclosure merge both the legal title with the beneficial title to give a fee simple title. See generally Harvard v. Davis, 145 Ga. 580, 583(1), 89 S.E. 740 (1916); Barnard v. Barnard, 91 Ga.App. 502, 86 S.E.2d 533 (1955); see also Cook v. Ga. Fertilizer & Oil Co., 154 Ga. 41(1), 113 S.E. 145 (1922).

When a sheriff levies and sells real property of the defendant-in-fifa, such sale affects only the unencumbered interests of the defendant as an involuntary judicial conveyance of such interests. Therefore, an undivided interest in real property, i.e., a tenancy in common, can be subject to levy and sale and such interest sold so that the purchaser acquires the same interests possessed by the defendant-in-fifa. See Morgan Guaranty Trust Co. v. Alexander Equities, 246 Ga. 60, 61, 268 S.E.2d 660 (1980); All Florida Sand v. Lawler Constr. Co., 209 Ga. 720, 75 S.E.2d 559 (1953); Register v. Harper, 177 Ga. 769, 771(1), 171 S.E. 269 (1933); Leonard v. Scarborough, 2 Ga. 73, 77(2) (1847).

A sheriff's sale of defendant's undivided one-half interest in a tenancy in common does not constitute a partitioning, because such sale merely results in an involuntary conveyance of the one-half undivided interest in a tenancy in common to the entire property to another, which defendant had the right to alienate in a non-fraudulent conveyance. See Rusk v. Hill, 121 Ga. 379, 380, 49 S.E. 261 (1904). Whatever unencumbered interests in land that the defendant-in-fifa could freely alienate by conveyance, the sheriff can levy and sell under the same rights of alienability as an interest in land. See generally OCGA § 9-13-60; Paces Partnership v. Grant, 212 Ga.App. 621, 624(1), 442 S.E.2d 826 (1994); Hortman v. Childress, 162 Ga.App. 536, 537-538, 292 S.E.2d 200 (1982); Alderman v Crenshaw, 84 Ga.App. 344, 346-347(1), 66 S.E.2d 265 (1951). Any new tenant in common would then have standing as joint owner to bring a petition for partitioning among the several available remedies. Byse v. Lewis, 260 Ga. 551, 552, 400 S.E.2d 618 (1990). The Supreme Court has suggested that partitioning is the legal remedy that a tenant in common would exercise after practical remedies to dispose of joint interests have been exhausted: "1. [s]ell the property and divide the proceeds[;] 2. [o]ne tenant in common to buy out the other[;] 3. [a]llow a foreclosure"; or 4. partition. Id. at 552, 400 S.E.2d 618. Thus, the Supreme Court does not equate partitioning with foreclosure or judicial sale.

2. The defendant enumerates as error that the superior court erred in failing to find that levy and execution by plaintiffs was in violation of OCGA § 9-13-60, relating to the sale of encumbered property. We do not agree.

The evidence before the trial court showed that the deed to secure debt encumbered not the entire 6.211 acres, but only the house and one acre. The defendant, in testimony, did not deny this. Therefore, the 5.211 acres levied upon by the sheriff were not encumbered, and the defendant had legal title to the land; the plaintiffs did not have to satisfy a security deed that did not encumber defendant's interest in land levied upon by the sheriff. See OCGA § 9-13-60; Perry v. Heflin, 202 Ga. 143, 42 S.E.2d 378 (1947); Moncrief Furnace Co. v. Northwest Atlanta Bank, 193 Ga. 440(3), 19 S.E.2d 155 (1942); pre-UCC Manchester Motors v. F & M Bank, 91 Ga.App. 811, 812-813(1), 87 S.E.2d 342 (1955).

OCGA § 9-13-60(a) reads in part: "[w]here any person other than the vendor or other than the holder or assignee of the purchase money or secured debt has a judgment against a defendant in execution who does not hold legal title to property but has an interest or equity therein, such plaintiff in execution may take up the debt necessary to be paid by the defendant in order to give the defendant legal title to the property by paying the debt with interest to date if due and interest to maturity if not due." (Emphasis supplied.) By its plain language, this Code section has no application to the facts of this case, because the defendant has unencumbered legal title to the property, i.e., a one-half undivided interest in a tenancy in common to the 5.211 acres sought to be levied upon by the sheriff. The act applies to defendants possessed of only equitable interest in the property. See Gamble v. Pitcher, 242 Ga. 556, 250 S.E.2d 416 (1978); Dean v. Andrews, 236 Ga. 643, 225 S.E.2d 38 (1976); Cook v. Securities Inv. Co., 184 Ga. 544, 192 S.E. 179 (1937); pre-UCC Manchester Motors v. F & M Bank, supra. Therefore, a levy and sale of an undivided one-half interest as a tenancy in common that is not subject to a deed to secure debt merely conveys the interest of the defendant-in-fifa and has no effect on other encumbered property.

Case No. A98A2267

3. Plaintiffs' enumeration of error is that the trial court erred in refusing to award damages under OCGA § 9-13-128 for a baseless, unsupported, and frivolous affidavit of illegality interposed for delay only. We agree.

OCGA § 9-13-128 reads: "[u]pon the trial of an issue formed on an affidavit of illegality, the jury trying the...