Reidling v. Holcomb, A97A0871

• Citation: 225 Ga.App. 229,483 S.E.2d 624
• Decision Date: 05 March 1997
• Docket Number: No. A97A0871,A97A0871
• Parties: , 97 FCDR 1171 REIDLING v. HOLCOMB et al.
• Court: United States Court of Appeals (Georgia)

Page 624

483 S.E.2d 624

225 Ga.App. 229, 97 FCDR 1171

REIDLING v. HOLCOMB et al.

No. A97A0871.

Court of Appeals of Georgia.

March 5, 1997.

Valpey & Walker, Gainesville, Harold M. Walker, Jr., Falls Church, VA, for appellant.

Hulsey, Oliver & Mahar, Jane A. Range, Abbott S. Hayes, Jr., Susan D. Brown, William I. Sykes, Jr., Gainesville, for appellees.

ELDRIDGE, Judge.

In May 1995, appellant Greg Reidling was shown property in the Southfield subdivision in Hall County. The salesman who showed the lot allegedly worked for appellees, Jack Waldrip and Larry Holcomb, doing business as Jack Waldrip Realty. The salesman gave appellant a copy of a subdivision plat which identified the property as Lot 4 of the subdivision; however, the plat was outdated, and the recorded revised plat identified the parcel as Lot 1 instead of Lot 4; the salesman walked the boundaries of the parcel with appellant. In his affidavit, appellant did not say that he had a title search done, that he had a lawyer represent him at the real estate closing, or that he had checked the deed records or examined the recorded plat that gave the legal description to the lot he purchased to determine what he was, in fact, purchasing.

Subsequently, appellant purchased Lot 4 of the recorded plat, which was not the parcel that he had inspected with the salesman, from appellees on May 12, 1995, and began construction of a residence upon such lot. Appellant is a home builder, by profession, and subsequently, entered into a sales contract for the house and lot with a buyer. After appellant completed approximately 75 percent of the construction of the house, appellee, Jack Hulsey, notified appellant that Hulsey owned the lot, that the subdivision plat had been revised so that Lot 4 of the old plat was recorded as Lot 1, that appellant owned Lot 4 of the recorded plat, and that Hulsey was taking possession of the house and lot, and that Hulsey would complete the construction of the house himself.

Appellant sued Waldrip and Holcomb for negligence and Hulsey for unjust enrichment. Appellant also sued Hulsey for injunctive relief. All the appellees answered. Appellees filed motions for summary judgment. As evidence in support of the motions for summary judgment, appellees submitted the warranty deed between appellant and the appellees-grantors, which described the parcel as Lot 4 of the Southfield subdivision, recorded on plat slide 153, page 123 A, of the Hall County records. Also submitted was the unrecorded plat, which differed from the recorded plat and which was revised on July 2, 1992. The sales contract signed by appellant and appellees-grantors identified the lot as Lot 4, plat slide 1793, page 230-236. Appellees also submitted an affidavit of their employee, Brenda Mulligan, who testified that on May 16, 1995, she gave appellant on his request, a copy of the correct recorded plat on plat slide 153, page 123 A. Appellant denied ever going to the office, talking to Mulligan, or receiving the plat. On July 15, 1992, Hulsey was conveyed title to Lot 1, which appellant mistakenly believed to be Lot 4.

The trial court granted the appellees' motions for summary judgment on October 2, 1996. Appellant filed a timely notice of appeal.

1. While appellant enumerates four alleged errors of the trial court in granting the summary judgments, the appellees were entitled to the grant of summary judgment as a matter of law, because the sole proximate cause of appellant's damages was appellant's own conduct, which bars recovery.

OCGA §§ 44-2-26, 44-2-27, and 44-2-28 provide that survey plats can be recorded in the records of the clerk of the superior court and can be incorporated by reference into any deed as the legal description of the property, as if set forth in the deed itself. OCGA §§ 44-2-1 and 44-2-3 provide for notice to the world of such title to the legally described property. "From this wording and from the various interpretations and applications thereof by the courts, it may be safely deduced that the sole purpose and effect of recordation of both deeds of bargain and sale and of deeds and bills of sale to secure debt insofar as third parties are concerned, is to afford such third parties constructive notice of the existence of such deed. Cammon v. State, 20 Ga.App. 175(1), 92 S.E. 957 [ (1917) ]. Insofar as priority between deeds or bills of sale to the same property from the same grantor are concerned, constructive notice as afforded by its proper recordation is sufficient. McElwaney v. MacDiarmid, 131 Ga. 97(3), 62 S.E. 20 [ (1908) ]." City Wholesale Co. v. Harper, 100 Ga.App. 151, 154-155, 110 S.E.2d 561 (1959); see also Fourth Nat. Bank of Columbus v. Howell, 92 Ga.App. 868, 90 S.E.2d 78 (1955). "The purpose of the recording statute is to protect against the negligent. It is by that statute made the plain duty of a grantee to record his deed, thereby giving constructive notice to every one of its existence and of his rights thereunder; and since it is thus made the duty of such grantee to supply notice, every one is justified in relying upon an examination of the record and believing that a purchase of land will convey all title which the record fails to disclose is in another." Archer v. Kelley, 194 Ga. 117, 127(3), 21 S.E.2d 51 (1942).

When a deed incorporates a recorded plat by reference as the legal description, such incorporated plat has the effect as if it were written out in the deed. Crooke v. Property Mgmt. Svcs., 215 Ga. 410, 110 S.E.2d 677 (1959); Westbrook v. Comer, 197 Ga. 433, 29 S.E.2d 574 (1944); Hardy v. Brannen, 194 Ga. 252, 21 S.E.2d 417 (1942).

OCGA § 23-1-17 provides that "[n]otice sufficient to excite attention and put a party on inquiry shall be notice of everything to which it is afterwards found that such inquiry might have led. Ignorance of a fact due to negligence shall be equivalent to...