Nash v. Miller, A93A2160
| Decision Date | 18 March 1994 |
| Docket Number | No. A93A2160,A93A2160 |
| Citation | 212 Ga.App. 513,441 S.E.2d 924 |
| Parties | NASH et al. v. MILLER. |
| Court | Georgia Court of Appeals |
Dennis P. Helmreich, Athens, for appellants.
McDonald, Haggard & Carney, H. Patrick Haggard, Athens, for appellee.
In September 1986, William and Lee Ann Nash borrowed $28,528.17 from Miller and Barrett, d/b/a Miller-Barrett Construction Company, which amount represented a portion of the sales price of a residence. The Nashes executed a promissory note, requiring the payment of six annual installments of $2,852.82 each, representing accrued interest only, with the first such payment being due September 1987, and a seventh and final payment of all outstanding principal plus remaining accrued interest being due September 1993. To secure the note, Lee Ann Nash also executed a security deed conveying the tract to the lenders. Later in 1986, Barrett conveyed all of his interest in the note to Miller.
The security deed provides that any sale, transfer or conveyance of the secured property without prior written consent of the holder may be considered a default. Without either Miller's consent or objection, Lee Ann Nash executed a warranty deed conveying the property to Robert Shiver in January 1991. This warranty deed was subject to the outstanding security deed from her to Miller and Barrett, and Shiver assumed the debt evidenced by the promissory note. Shiver failed to make the 1991 note payment.
In November 1991, Shiver executed a warranty deed conveying the property to Miller for $10 and other valuable consideration. This deed stated that the property was being conveyed subject to the outstanding deed to secure debt from Nash to Miller and Barrett; that it was the intent of Shiver and Miller that the interest created in Miller by the warranty deed not be merged with the interest created in Miller and Barrett by the security deed; and that nothing contained in the warranty deed would release the security deed. Miller's attorney notified the Nashes of the default.
Miller later conveyed the property by warranty deed to the Hursts. The real estate transfer tax was $73.50. See OCGA § 48-6-1. The Hursts in turn executed a security deed to a bank to secure repayment of a note in the principal amount of $53,500.
Shortly thereafter, Miller brought this action against the Nashes for the $28,528.17 unpaid principal balance of their note, accrued interest, and attorney fees.
The Nashes answered, asserting various defenses including payment of the debt. They also filed a motion to implead Shiver as a third-party defendant on the ground that his failure to pay the September 1991 installment to Miller constituted a breach of his agreement to assume the indebtedness of Lee Ann Nash to Miller.
Miller filed a motion for summary judgment, arguing that the Nashes have not been released from their debt obligation, the warranty deed from Shiver expressly states that it is the intention of the parties that Miller's interests not be merged, and the security deed between Miller and the Nashes remains unsatisfied.
The Nashes responded that whether the security deed has been satisfied is a disputed fact. They argued that a merger occurred by Miller's acceptance from Shiver of what is and should be construed as a deed in lieu of foreclosure in full settlement of all debts assumed by Shiver.
The trial court granted Miller's motion for summary judgment in the sum of $39,950.05 consisting of principal, interest, and attorney fees. The Nashes' motion to bring a third-party complaint was denied as moot.
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