Kinsley v. Upshaw
Decision Date | 20 November 1980 |
Docket Number | No. 60361,60361 |
Citation | 274 S.E.2d 850,156 Ga.App. 513 |
Parties | KINSLEY et al. v. UPSHAW. |
Court | Georgia Court of Appeals |
James A. Elkins, Jr., Columbus, for appellants.
Albert W. Thompson, Columbus, for appellee.
Luevenia Kinsley and her son, William, bring this appeal from the grant of a writ of possession.
The evidence showed that Mrs. Kinsley conveyed her one-half interest in certain real property to her daughter, Mrs. Johnnie Mae Smith, the owner of the other half interest. The date of this conveyance is not shown in the record. Mrs. Smith conveyed the entire fee to her daughter, Audrey Upshaw, on August 29, 1979. On September 20, 1979, Ms. Upshaw notified her grandmother and her uncle that she had purchased the property and demanded that they vacate the premises. On October 23, 1979, she brought a dispossessory proceeding alleging that they were tenants at sufferance, that she had made a demand for the premises and that they refused to surrender possession. Mrs. Kinsley answered admitting that she was in possession of the property, but contended that she had reserved a life estate in the premises when she conveyed her interest to Mrs. Smith. William Smith also admitted possession and claimed that he remained on the premises as the guest of his mother.
The trial court found that Ms. Upshaw made out a prima facie case by showing that she was owner of the fee of the premises, that she had made a demand for the premises and that the defendants refused to surrender the premises. The court further found that the defendant's original entry on the premises was lawful, but their holding over after the conveyance of the property to the plaintiff was wrongful and created the relationship of landlord and tenants at sufferance and that parol evidence was not admissible to show consideration for or vary the terms of the warranty deed. Appellants contend that the trial court erred in holding that parol evidence was not admissible to show consideration for or vary the terms of the warranty deed, that the plaintiff was the landlord of the defendants and in granting the dispossessory warrant. Held :
While Mrs. Kinsley's explanation of the conveyance of her one-half undivided interest to Mrs. Smith is capable of being interpreted as an attempt to allege the creation of an express oral estate in contradiction of or to vary the terms of the warranty deed; nevertheless, it is likewise capable of being interpreted as an allegation of an implied or resulting trust. Particularly this is true in light of such holdings as Chandler v. Ga. Chemical Works, 182 Ga. 419, 425, 185 S.E. 787 (1926), where the court stated: Berry v. Williams, 141 Ga. 642, 81 S.E. 881 (1914).
Here we have a grandmother in possession and all subsequent holders have implied if not actual notice of her possession of the premises. Freeman v. Saxton, 240 Ga. 309, 312, 240 S.E.2d 708 (1977) states: See Hemphill v. Hemphill, 176 Ga. 585, 590, 168 S.E. 878 (1932): ...
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...or specific performance. b. Defendant may use "equitable defenses" to defend against liability [223 Ga. 707, 157 SE2d 735 (1967); 156 Ga.App. 513, 274 SE2d 850 (1980); 270 Ga.App. 93, 606 SE2d 112 (2004) (equitable defenses to dispossessory)]. c. Seeking a money judgment or possession of pr......
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...or specific performance. b. Defendant may use "equitable defenses" to defend against liability [223 Ga. 707, 157 SE2d 735 (1967); 156 Ga.App. 513, 274 SE2d 850 (1980); 270 Ga.App. 93, 606 SE2d 112 (2004) (equitable defenses to dispossessory)]. c. Seeking a money judgment or possession of pr......
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1 Small Claim Cases
...or specific performance. b. Defendant may use "equitable defenses" to defend against liability [223 Ga. 707, 157 SE2d 735 (1967); 156 Ga.App. 513, 274 SE2d 850 (1980); 270 Ga.App. 93, 606 SE2d 112 (2004) (equitable defenses to dispossessory)]. c. Seeking a money judgment or possession of pr......
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