Kinsley v. Upshaw

Decision Date20 November 1980
Docket NumberNo. 60361,60361
Citation274 S.E.2d 850,156 Ga.App. 513
PartiesKINSLEY et al. v. UPSHAW.
CourtGeorgia Court of Appeals

James A. Elkins, Jr., Columbus, for appellants.

Albert W. Thompson, Columbus, for appellee.

DEEN, Chief Judge.

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: "1. A deed absolute in form may be shown to have been made to secure a debt, where the maker remains in possession of land. Mercer v. Morgan, 136 Ga. 632, 71 S.E. 1075. 2. Actual possession is notice to the world of the right or title of the occupant. Mercer v. Morgan, supra; Bridger v. Exchange Bank, 126 Ga. 821, 56 S.E. 97, 8 L.R.A. (N.S.) 463, 115 Am.St.R. 118; Austin v. Southern Home, etc., Assoc., 122 Ga. 439, 50 S.E. 382." 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: "Although the appellant could not (in the absence of fraud, accident, or mistake) engraft an express oral trust on a deed absolute on its face, he may introduce parol evidence (including an oral agreement of the parties to the deed) which would impress the deed with an implied trust. See Harper v. Harper, 199 Ga. 26, 33 S.E.2d 154 (1945)." See Hemphill v. Hemphill, 176 Ga. 585, 590, 168 S.E. 878 (1932): ...

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3 cases
  • Georgia Farm Bureau Mut. Ins. Co. v. Smith, 71721
    • United States
    • Georgia Court of Appeals
    • June 4, 1986
    ...the warranty deed from James to Thomas. Accord Freeman v. Saxton, 240 Ga. 309(1), 240 S.E.2d 708 (1977); Kinsley v. Upshaw, 156 Ga.App. 513, 274 S.E.2d 850 (1980). The judgment of the trial court is affirmed with direction that James F. Smith write off the sum of $3,000 from his recovery wi......
  • McFarley v. State
    • United States
    • Georgia Court of Appeals
    • July 20, 2004
    ...to establish an ownership interest in such a trust's beneficiary. See, e.g., McCann v. McCraine1 (implied trust impressed on vehicle); Kinsley v. Upshaw2 (implied trust in real property). Under Georgia [t]rusts are implied: 1. Whenever the legal title is in one person, but the beneficial in......
  • Westwood Place, Ltd. v. Green, s. 59288-59290
    • United States
    • Georgia Court of Appeals
    • November 20, 1980
12 books & journal articles
  • 1 Small Claim Cases
    • United States
    • State Bar of Georgia Georgia Benchbook 2023 edition
    • Invalid date
    ...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......
  • 1 Small Claim Cases
    • United States
    • State Bar of Georgia Georgia Benchbook 2022 edition
    • Invalid date
    ...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......
  • 1 Small Claim Cases
    • United States
    • State Bar of Georgia Georgia Benchbook 2016 edition
    • Invalid date
    ...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......
  • 2 Landlord|Tenant
    • United States
    • State Bar of Georgia Georgia Benchbook 2018 edition
    • Invalid date
    ...money judgment even though equitable claims are involved [270 Ga.App. 93, 206 SE2d 112 (2004) (equitable defenses to dispossessory); 156 Ga.App. 513, 274 SE2d 850 (1980); see 228 Ga. 448, 450(3), 186 SE2d 94 (1971), but see 123 Ga.App. 796, 182 SE2d 796 (1971)] (see 1.11C): • "It is fundame......
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