Tingle v. Tingle, 26159

• Decision Date: 03 December 1970
• Docket Number: No. 26159,26159
• Citation: 227 Ga. 97,179 S.E.2d 51
• Parties: Ben F. TINGLE, III v. Mary Alice TINGLE, by Guardian, et al.
• Court: Georgia Supreme Court

Page 51

179 S.E.2d 51

227 Ga. 97

Ben F. TINGLE, III v. Mary Alice TINGLE, by Guardian, et al.

No. 26159.

Supreme Court of Georgia.

Dec. 3, 1970.

Rehearing Denied Dec. 17, 1970.

Syllabus by the Court

1. The transaction here was a sale of real estate with option to repurchase.

2. Formal tender was not required as a condition for the exercise of such option under the circumstances here.

3. The rulings in 1 and 2 control adversely to appellant on enumerations of error 3 and 4.

William G. McRae, Atlanta, for appellant.

Arnold, Cate & Allen Howard & Storey, Harold Sheats, Atlanta, for appellees.

GRICE, Justice.

This appeal stems from the request of the parties that the trial court construe certain instruments in a transaction and declare the rights of the parties with reference Thereto.

The litigation began when Mary Alice Tingle and Mrs. W. D. McDonald, individually and as attorney in fact for Mary Alice Tingle, filed suit in the Superior Court of Fulton County against her nephes, Ben F. Tingle, III, and other defendants, including three banking institutions, seeking various forms of relief including cancellation of certain warranty deeds executed by Mary Alice Tingle individually, and as sole owner and president of Campbell-Chandler, Inc., to Ben F. Tingle, III, or in the alternative that said documents be declared to be security instruments.' One of these warranty deeds, executed on January 20, 1967, sought to convey property in DeKalb County, Georgia, and another of the deeds, executed on January 26, 1967, purported to convey property in Clayton County, Georgia. Another embodied property in the State of Alabama, but it is not involved in this appeal. The plaintiff alleged that the deeds were the result of fraud and undue influence, and were without any consideration.

Subsequently, changes in parties took place. Mary Alice Tingle was adjudged incompetent and her guardian was substituted for her. Mrs. McDonald dismissed the action against several defendants not necessary to name here.

The deeds to the DeKalb County and Clayton County properties were executed in connection with the terms of an agreement between Mary Alice Tingle and Ben F. Tingle, III, dated February 17, 1967. The material parts of these will be hereinafter set forth.

The defendant Ben F. Tingle, III, answered by denying the material allegations of the complaint and alleged his legal position as to the transaction. The other defendants answered in particulars not necessary to recite here.

Upon application of the parties, the trial court construed this agreement. It held insofar as relevant here, that the agreement and the deeds to the DeKalb and Clayton County properties constituted only one transaction; and without any extrinsic evidence being introduced, it held that the parties intended the warranty deeds to be security deeds, and not deeds of outright bargain and sale. This judgment was certified for immediate review.

The terms of the agreement, referred to above, insofar as material here, are those which follow.

Initially it recited that Mary Alice Tingle formerly owned the DeKalb and Clayton County properties described in the two deeds above referred to, executed on January 20, 1967 and January 26, 1967, respectively. It next stated that Mary Alice Tingle incurred two indebtednesses to A. J. Shelfer totalling $55,000, secured by deeds to secure debt, covering the DeKalb County property conveyed to Ben F. Tingle, III, as aforesaid; that she had also incurred an indebtedness to Burton Realty Co. by virtue of a judgment for $11,546.75; that the holders of these indebtednesses were threatening to foreclose and levy against her properties; that she had requested him to assist her in preventing foreclosure and levy and 'to lend to (her) (his) credit' in obtaining necessary funds of pay off these debts; that they desire to enter into an agreement concerning their respective rights to the properties recently conveyed by her to him by the aforesaid deeds; and that in consideration of $1.00 each paid to the other, and the mutual promises hereinafter contained, they agreed as follows.

The agreement also provided that in order to prevent foreclosure upon the DeKalb County property Mary Alice Tingle conveyed to Ben F. Tingle, III, said properties; that he obtained a loan from the National Bank of Georgia for $65,000, which was used by him to pay off the indebtedness owed by her to A. J. Shelfer; under the terms of said loan he is required to pay off said loan in monthly installments of $961.05, and he thereby agrees to make said loan payments to the bank as they come due; in addition, in the event she is not financially able to do so, he will pay the ad valorem taxes and any other governmental assessments which might come due against said property.

The agreement also recited that in order to prevent the threatened levy of judgment against the property of Mary Alice Tingle, and because she did not have sufficient funds to pay said judgment, she, by the aforesaid deed, caused Campbell-Chandler, Inc. to convey the Clayton County property to Ben F. Tingle, III, and he obtained a loan of $10,500 from the Bank of Fulton County, which proceeds were used by him to pay off the judgment. Under the terms of said loan he is required to repay said indebtedness to the bank in monthly instalments, and he agrees to pay them. In addition there are unpaid ad valorem taxes owed to Clayton County on said property which he paid from his funds amounting to $348.71. In addition to repaying said loan to the Bank, he agrees to pay all ad valorem taxes and any other governmental assessments against said property which might accrue during the life of this agreement.

The agreement further stated that the parties hereto recognize that title to the properties conveyed by Mary Alice Tingle and Campbell-Chandler, Inc., to Ben F. Tingle, III, by the deeds, was conveyed for her benefit and to prevent loss of said properties through foreclosure and levy. He 'has accepted the title to (the properties) and has obtained the necessary loans thereon to pay off (her) debts.' With respect to the DeKalb County property, it is occupied by her as her home, 'and it is recognized by the parties hereto there will be no change whatsoever in the status of said property, (she) continuing to reside upon (it) as her home during the life of this agreement. At any time during the life of this agreement, (she) shall have the right to a reconveyance by (him) to (her) of the (properties) at any time that (she) pays in full, or provides for the repayment in full, of the balance due on the said two loans obtained by (him), and pays in full all sums heretofore and hereafter advanced or expended by (him) on (her) behalf for the installment payments of the said two loans against the properties, and any sums expended by (him) for closing costs of said loans, and all sums expended by (him) for taxes against the property and any other sums previously or hereinafter paid by (him) for (her) in conserving and protecting said property. Such right on (her) behalf shall continue during her lifetime. In the event (she) does not, during her lifetime, repay to (him) all sums which (he) has paid on her behalf with respect to said two loans and with respect to...