North Georgia Production Credit Ass'n v. Vandergrift

• Decision Date: 08 September 1977
• Docket Number: No. 32282,32282
• Parties: NORTH GEORGIA PRODUCTION CREDIT ASSOCIATION v. Alexander VANDERGRIFT et al.
• Court: Georgia Supreme Court

Page 869

238 S.E.2d 869

239 Ga. 755

NORTH GEORGIA PRODUCTION CREDIT ASSOCIATION v. Alexander VANDERGRIFT et al.

No. 32282.

Supreme Court of Georgia.

Sept. 8, 1977.

Rehearing Denied Sept. 28, 1977.

Davis, Davidson & Hopkins, Jack S. Davidson, Jefferson, Robinson, Harben, Armstrong & Millikan, Sam S. Harben, Jr., Gainesville, for appellant.

Griffeth & Henry, David W. Griffeth, Cook, Noell, Bates & Warnes, James C. Warnes, Athens, for appellees.

BOWLES, Justice.

This is an appeal from the lower court's order granting appellee's (defendant's in the court below) motion for a directed verdict against appellant (plaintiff in the court below), at the close of plaintiff's evidence, and in further receiving a subsequent verdict on defendant's counterclaim, as well as a subsequent verdict on intervenors' claim, and entering judgment on the latter verdicts.

Because of the multiple parties involved we will refer to them as they appeared in the trial court. Plaintiff was North Georgia Production Credit Association, who brought an action for declaratory judgment in the Superior Court of Jackson County, Georgia against Alexander Vandergrift, as defendant. Messrs. McGowen, Groover and Mize, filed application to intervene in the case which was allowed.

In substance, plaintiff's complaint alleged that it held title to a certain two acre tract of land in Jackson County under the terms of a Deed to Secure Debt from the intervenors. Previously, plaintiff held a Deed to Secure Debt to this two acre tract and other land from one Edgar Escoe who is the same person as Jack Escoe, and which instrument secured an obligation of $89,000, owed by Escoe to plaintiff. Because of Escoe's default, plaintiff on May 7, 1974, foreclosed its Deed to Secure Debt, and sold the two acre tract, along with other real estate, by virtue of the power sale contained in that Deed to Secure Debt. The successful bidders at the sale were the intervenors. On May 21, 1974, plaintiff loaned the intervenors $78,500.00 as part of the purchase money for the land involved, and accepted as security from the intervenors the Security Deed herein referred to, which included the two acre tract and other real estate.

Thereafter, defendant Vandergrift filed a complaint in equity, in the Superior Court of Clarke County, Georgia, wherein he named plaintiff and intervenors as defendants, and sought to enjoin acts of trespass on the disputed two acre tract and to further enjoin all acts interfering with defendant's claim to possession.

As a result of defendant's claim to title and possession of the disputed property, intervenors contend they are not obligated to pay plaintiff the amount owed it by virtue of the promissory note and Deed to Secure Debt from intervenors to plaintiff, and further contend that the foreclosure deed conveying the disputed two acre tract to intervenors is void. Plaintiff alleged that as a result of defendant's action and intervenors' subsequent refusal to pay, plaintiff was left insecure and uncertain as to its rights to foreclose on its Deed to Secure Debt, or to take any action with respect to the disputed property. Plaintiff asked the court for a judgment declaring that it had title to the disputed property for the purpose of securing a debt from the intervenors to plaintiff and a determination that the defendant had no title to the same. The defendant responded to the complaint by admitting jurisdiction, and denying that he made claim to the property described in plaintiff's complaint, denied that he contended that he had legal title to said property, denied that the intervenors were wrongfully trespassing and wrongfully claiming said property, denied that their conduct constituted a continuing nuisance and denied that he contended that he had suffered irreparable harm by virtue of the conveyance by plaintiff to the intervenors of the disputed tract. Defendant also denied that a complaint in equity had been filed in Clarke Superior Court against all of the parties as set forth in plaintiff's complaint. As to the other allegations in plaintiff's complaint, defendant answered "for want of sufficient information upon which to form a belief, defendant can neither admit nor deny the allegations . . ." Defendant also filed a counterclaim in which he sought to incorporate most of the allegations of a complaint in equity theretofore filed in the Superior Court of Clarke County, Georgia, bearing Civil Action No. 26227, (being the specific lawsuit referred to in plaintiff's complaint) and attached a copy to his counterclaim. The counterclaim sought a declaratory judgment declaring that defendant has title to a certain described tract of land described in the Clarke County complaint, which overlaps substantially the property described in plaintiff's complaint, asked that the intervenors be made parties to the counterclaim, and that plaintiff and the intervenors be jointly and severally, permanently enjoined from interfering with defendant's quiet, peaceful, exclusive and uninterrupted possession of his described property.

The intervenors contended they were not obligated to pay plaintiff the amount owed by virtue of the promissory note issued by intervenors in plaintiff's behalf, and further contended that the foreclosure deed conveying the disputed two acre tract from plaintiff as attorney in fact for Edgar Escoe to them was void. They contended that Edgar Escoe did not own the tract in question at the time he conveyed the same by Deed to Secure Debt to the plaintiff, and therefore the court should enter its judgment setting aside the Deed to Secure Debt granted by intervenors to the plaintiff in the amount of $78,500. In addition, they sought to recover the cash down payment they made.

Upon the trial of the case counsel for the parties stipulated in open court that plaintiff's Exhibit Nos. 1 through 10, and defendant's Exhibit Nos. 1 through 7 and No. 13, would be admitted in evidence without further proof. These documents indicate that both plaintiff and defendant claim under a common grantor, one Edgar Escoe that on the 29th day of April, 1969, Edgar Escoe along with Verner Howington purchased from one Patricia G. Allen a tract containing 29.136 acres of land in the 255th District, G.M., of Jackson County, Georgia, according to a plat of same prepared by James Flanders, dated March 4, 1969 and which tract was bounded on the north by other lands of Patricia G. Allen, and lands of the Dunson estate; the east by a gully; on the south by an unpaved county road; on the west by what is known as Water Works Road. Howington and Escoe conveyed this identical property, and other property, to the Northeastern Banking Company by Deed to Secure Debt dated 15 November, 1969, for a loan of $23,700. On the 24th day of December, 1970, Northeastern Banking Company and Verner Howington, jointly quitclaimed to Jack Escoe, who is the same person as Edgar Escoe, a one-acre parcel of land in the northeast intersection of Water Works Road and a dirt road known as Hood Mill Road, which leads from the Water Works Road to the home of Verner Howington. The quitclaim deed further describes the land by metes, courses and bounds. On the 22nd day of June, 1971, Verner Howington and Northeastern Banking Company jointly conveyed by quitclaim deed a second acre of land described by metes, courses and bounds, on the east side of Water Works Road and immediately north of the previous one-acre tract. The second deed ties to a starting point the intersection of Water Works Road with a dirt road known as Hood Mill Road, being the road which leads from Water Works Road to the home of Verner Howington. The second deed is also described by metes, courses and bounds. On the 12th day of July, 1971, Edgar Escoe, conveyed by Deed to Secure Debt to plaintiff, four tracts of land, two of which, accurately describe each of the one-acre parcels hereinabove referred to. On the 24th day of May, 1974, the plaintiff foreclosed the Deed to Secure Debt from Edgar Escoe to it and sold the four tracts of real estate therein described to the intervenors. There was a judgment of record confirming that sale under power issued by the Superior Court of Jackson County, Georgia. On the 21st day of May, 1974, the intervenors made and executed to the plaintiff, a Deed to Secure Debt, conveying those same four tracts of real estate for an indebtedness of $78,500.

Plaintiff introduced in evidence a plat prepared by the Venable Brothers, Surveyors, outlining the two one acre tracts in dispute, in which they located on the plat as being in the northeast intersection of Water Works Road, and a road which they designated as Hood Mill Road.

The documents introduced in the case by the defendant, prior to the close of plaintiff's evidence, included a general highway map of Jackson County, Georgia, a Warranty Deed dated 2 February 1972 wherein Verner Howington conveyed to Jack Escoe, his one-half undivided interest in a 29.136 acre tract, per plat of James Flanders, dated March 4, 1969, recorded in Plat Book 6, at page 56, Jackson County Public Deed Records. Also, a Warranty Deed dated July 7, 1972 from Jack Escoe to James A Ryder conveying the same 29.136 acres of land. Also, a Warranty Deed from James A. Ryder to Beverly-Lynn Woods, Inc., dated the 5th day of October, 1972 conveying other property and the identical 29.136 acres of land, Plat Book 6, page 56. Also, a Warranty Deed from Beverly-Lynn Woods, Inc. to John B. Adams and Alexander Vandergrift dated the 6th day of March, 1974, conveying 27.26 acres of land per plat of the same prepared for James Ryder by James M. Paul and recorded in Plat Book 9 at page 202, Jackson County Deed Records. This conveyance and the plat omitted from both a tract in the southwest corner which would be the northeast intersection of Water Works Road, and an unnamed county paved road overlapping in part the two acres in dispute. Also introduced was a Warranty Deed from...