HOLY FELLOWSHIP v. GREATER TRAVELERS, A99A0035.

• Decision Date: 01 February 1999
• Docket Number: No. A99A0035.,A99A0035.
• Citation: 511 S.E.2d 280,236 Ga. App. 177
• Parties: HOLY FELLOWSHIP CHURCH OF GOD IN CHRIST v. GREATER TRAVELERS REST BAPTIST CHURCH.
• Court: Georgia Court of Appeals

511 S.E.2d 280

236 Ga. App. 177

HOLY FELLOWSHIP CHURCH OF GOD IN CHRIST v. GREATER TRAVELERS REST BAPTIST CHURCH.

No. A99A0035.

Court of Appeals of Georgia.

February 1, 1999.

Newton H. Purvis, John A. Pickens, Atlanta, for appellant.

Giddens, Davidson & Mitchell, Bobby L. Giddens, Atlanta, for appellee.

BARNES, Judge.

After foreclosing on a security deed executed in its favor, Greater Travelers Rest Baptist Church ("Greater Travelers") filed a dispossessory action against Holy Fellowship Church of God in Christ ("Holy Fellowship"). Holy Fellowship appeals from the trial court's order granting a writ of possession, contending that the trial court erred when it found that OCGA § 44-7-9 precluded Holy Fellowship from disputing Greater Travelers' ownership of the subject property. We agree and reverse the judgment of the trial court.

The record shows that Holy Fellowship's defense to the dispossessory action was based upon its claim that Greater Travelers no longer owned the property at the time it filed the dispossessory action. According to Holy Fellowship, Greater Travelers held a second mortgage on the property which was subordinate to a first mortgage jointly held by J. Mark Britain, Trustee, and Church Loans and Investment Trust ("Britain").¹ Thus, Holy Fellowship argues, Britain's foreclosure on the subject property three months after Greater Travelers' foreclosure divested Greater Travelers of any ownership interest in the subject property.

During a hearing held on February 25, 1998, Greater Travelers asserted that Holy Fellowship's "title" defense was not a valid defense based upon OCGA § 44-7-9, which provides: "The tenant may not dispute his landlord's title or attorn to another claimant while he is in actual physical occupation, while he is performing any active or passive act or taking any position whereby he expressly or impliedly recognizes his landlord's title, or while he is taking any position that is inconsistent with the position that the landlord's title is defective." Based upon a suit Holy Fellowship filed against Britain in another jurisdiction that contested Britain's right to foreclose on the property, the trial court found that Holy Fellowship had taken an inconsistent position and was therefore barred from contesting Greater Travelers' title to the property. The trial court apparently granted a writ of possession to Greater Travelers based on this conclusion.

1. In this appeal, Holy Fellowship contends the trial court erred when it found OCGA § 44-7-9 barred its defense that Greater Travelers no longer owned the property at the time it filed the dispossessory action. We agree. "The defense of lack of landlord-tenant relationship is a proper defense to a dispossessory action; if the defendant so answers, a trial of the issues shall be had in a civil court of record." (Citations omitted.) Bread of Life Baptist Church v. Price, 194 Ga.App. 693-694, 392 S.E.2d 15 (1990). See also Womack v. Columbus Rentals, 223 Ga.App. 501, 503(2a), 478 S.E.2d 611 (1996).

In Raines v. Hindman, 136 Ga. 450, 452-453, 71 S.E. 738 (1911), the Supreme Court of Georgia explained the difference between an improper defense based upon a defect in the original grant of title to the landlord and a legitimate defense based upon a later transfer of ownership or title by the landlord. "[O]ne who holds land rented from another will be estopped from claiming that at the time the property was rented the landlord did not have title thereto. This doctrine, however, can not be so extended as to prevent the tenant from showing that during the term of the tenancy the landlord's title expired by limitation, or that the same has been divested by judicial sale, or that the landlord has voluntarily parted with title during the tenancy. Showing...