Montgomery v. Barrow

• Decision Date: 25 March 2010
• Docket Number: No. S09A1510.,S09A1510.
• Citation: 286 Ga. 896,692 S.E.2d 351
• Parties: MONTGOMERY et al.v.BARROW et al.
• Court: Georgia Supreme Court

286 Ga. 896
692 S.E.2d 351

MONTGOMERY et al.
v.
BARROW et al.

No. S09A1510.

Supreme Court of Georgia.

March 25, 2010.

692 S.E.2d 352

Sell & Melton, Jeffrey B. Hanson, Blake E. Lisenby, David H. McCain, Macon, for appellants.

David & McPhail, Robert S. McPhail, Butler, Walker, Hubert, Gray, Byrd & Christy, Charles W. Byrd, Perry, for appellees.

CARLEY, Presiding Justice.

Barrow & Byrd Properties, Inc. (B & B), purchased approximately 223 acres of land from the estate of Cauley Barrow for $247,800. Lamar and Robbie Ann Montgomery, as executors of the estate of Robert Barrow (Executors), filed an action to quiet title and for other relief, claiming that Robert Barrow, who was the son of Cauley Barrow, owned the property from 1975 until his death in 2000, pursuant to four unrecorded warranty deeds transferring the property from his father to him. B & B answered that it was a bona fide purchaser for value without notice of the unrecorded deeds. A jury trial was held solely as to the issue of whether Robert Barrow had owned the property. The jury returned a verdict finding that Robert Barrow had not owned the property by prescription, but that he had owned it at the time of his death by virtue of the unrecorded deeds. Several months later, the parties filed opposing motions for summary judgment on the issue of whether B & B was a bona fide purchaser without notice of the unrecorded deeds. The trial court denied the motion filed by Executors, but granted summary judgment in favor of B & B. Executors appeal.

1. Executors contend that the trial court erred in denying their summary judgment motion and granting summary judgment in favor of B & B because the evidence shows that B & B had notice sufficient to preclude it from being a bona fide purchaser for value without notice. “A bona fide purchaser for value is protected against outstanding interests in land of which the purchaser has no notice. [Cits.]” Farris v. Nationsbanc Mtg. Corp., 268 Ga. 769, 771(2), 493 S.E.2d 143 (1997). Indeed, “there is a presumption of good faith which attaches to a purchaser for value and which remains until overcome by proof. [Cit.]” Anderson v. Streck, 190 Ga.App. 224, 226, 378 S.E.2d 526 (1989). However,

“[a]ny circumstance which would place a man of ordinary prudence fully upon his guard, and induce serious inquiry, is sufficient to constitute notice of a prior unrecorded deed. And a younger deed, taken with such notice, acquires no preference by being recorded in due time.” [Cit.]

Price v. Watts, 223 Ga. 805, 806(2), 158 S.E.2d 406 (1967).

692 S.E.2d 353

Executors base their challenge to the trial court's summary judgment rulings on the testimony of Homer Barrow, one of the owners of B & B. He testified that the executor of the estate of Cauley Barrow told him that title to the property was in Cauley Barrow's name at the time of his death, and that a title search confirmed that claim. His partner in B & B, Garland Byrd, Jr., also testified that a title search showed that Cauley Barrow owned the property at the time of his death. However, Homer Barrow further testified that Eddie Davis, Executors' attorney, told him that Executors said that they had unrecorded deeds to the property. Homer Barrow asked Davis to provide copies of the deeds, but Executors repeatedly failed to provide such copies to Davis or B & B. Executors eventually claimed that the deeds had been destroyed in a fire. Davis testified that because Executors could not provide copies of the deeds, he “began to assume they did not exist.” It was not until Executors filed this lawsuit that they came forward with copies of the unrecorded deeds, attaching them to the complaint.

The dissent claims that, in addition to the evidence cited by Executors, there is other undisputed evidence in the record which demands summary judgment in favor of Executors. According to the dissent, most telling is the evidence that Homer Barrow discussed buying the property from Robert Barrow. Dennis Verdan, a longtime friend of Robert Barrow, gave hearsay testimony claiming that Robert Barrow told him that Homer Barrow had offered to buy the property. When Homer Barrow was asked about that claim, he testified that he did not remember making such an offer. He explained that Robert Barrow called him and asked for help paying off debts owed on the property by either buying it or helping sell it, but he did not believe that he would have offered to buy the property at that point because of the uncertainty concerning those debts. He further testified that, at that time, he did not know who owned the property, and that Robert Barrow never claimed ownership or mentioned the unrecorded deeds to him.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. [Cit.]

Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991). In this case, the evidence that Davis told Homer Barrow that Executors claimed to have unrecorded deeds, and the other evidence cited by the dissent, creates a genuine issue of material fact as to whether B & B had sufficient notice of the unrecorded deeds. See Page v. Will McKnight Constr., 282 Ga.App. 571, 572(1), 639 S.E.2d 381 (2006) (evidence that purchaser was told about lien on property raised question of fact for jury about whether purchaser had actual notice of the encumbrance). “If, and only if, no disputed issue of material fact remains is the trial court authorized to grant summary judgment.” Georgia Canoeing Assn. v. Henry, 263 Ga. 77, 78, 428 S.E.2d 336 (1993). Accordingly, the trial court erred in granting summary judgment in favor of B & B.

However, the evidence, including Executors' repeated failure to provide copies of the unrecorded deeds, does not demand a further finding that the presumption of B & B's good faith purchase for value has been overcome, nor does it require a conclusion that Executors are entitled to judgment as a matter of law. In arguing for a different result, the dissent states that “the majority ... relies on selected bits of the extensive record, rather than considering the record as a whole.” (Dissent, p. 902, n. 1, 692 S.E.2d p. 356, n. 1) Contrary to that statement, we have in fact considered the whole record. Moreover, it is precisely because there are bits of evidence in the record which create genuine issues of material fact that summary judgment is not appropriate in this case. It is not the role of this Court, but is the role of a jury to sort through the evidence, resolve conflicts, and make findings of fact based on the evidence it finds credible.

“ ‘ “A jury in arriving at a conclusion upon disputed issues of fact may believe a part of the testimony of a witness or witnesses, and reject another part thereof, it being their duty to ascertain the truth of the

692 S.E.2d 354

case from the opinion they entertain of all the evidence submitted for their consideration.” [Cit.]’ [Cit.]”

Southern R. Co. v. Newman, 187 Ga. 132, 134(1), 199 S.E. 753 (1938). Indeed, because it is a jury's prerogative to accept or reject, in whole or in part, the evidence submitted, “generally the question of what would put a prudent man on his guard is a question for the jury....” Heard v. Nat. Bank of Wilkes, 143 Ga. 48, 51(2), 84 S.E. 129 (1915). See also Dollar v. Dollar, 214 Ga. 499, 503(1), 105 S.E.2d 736 (1958) (“The question as to whether the defendant ... had actual notice, or as to whether the circumstances were sufficient to put him on notice of the state of the title, were questions to be determined by the jury. [Cits.]”) R.W. Holdco, Inc. v. SCI/RW Holdco, Inc., 250 Ga.App. 414, 415(1), 551 S.E.2d 825 (2001) (whether circumstances were sufficient to put purchaser on notice of the appellants' interest in the property was a question of fact to be determined by the trier of fact). “ ‘The Act (authorizing summary judgment) cannot deprive a party of the opportunity to have a trial of a genuine issue as to any material fact, and it is indeed a great responsibility to say that “in truth there is nothing to be tried.” ’ [Cit.]” Weekes v. Parker, 120 Ga.App. 549(2), 171 S.E.2d 660 (1969). Consistent with the general rule, it is apparent from all of the evidence in this case that there is “a jury question ... as to whether [the] facts and circumstances were sufficient to place [B & B] fully on guard and induce serious inquiry as to the existence of the unrecorded deed [s].” Jeanes v. Moore, 240 Ga. 466, 467, 241 S.E.2d 222 (1978). Because there exist genuine issues of material fact as to notice and whether B & B is a bona fide purchaser, the trial court's erroneous grant of B & B's motion for summary judgment must be reversed, and its correct denial of Executors' motion for summary judgment must be affirmed Price v. Watts, supra (affirming denial of summary judgment where question of fact existed as to buyer's notice of unrecorded deed to secure debt). Compare Anderson v. Streck, supra (evidence on summary judgment showed without dispute that bona fide purchaser did not have notice of lien).

2. B & B also argues that Executors are precluded from asserting title to the property based on estoppel. The estoppel by conduct doctrine is codified in OCGA § 51-6-4, subsection (a) of which recognizes that “[a] fraud may be committed by acts as well as words[,]” and subsection (b) of which states that “[o]ne who silently stands by and permits another to purchase his property, without disclosing his title, is guilty of such a fraud as estops him from subsequently setting up such title against the purchaser.” B & B contends that Executors are estopped from asserting title to the property based on the unrecorded deeds because they sat silently by while B & B purchased the property from the Cauley Barrow estate. However, estoppel by conduct operates only in favor of a...