337 S.E.2d 448 | Ga. Ct. App. | 1985
Appellees Sunbelt Investments Realty, Inc., Sunbelt Investments, Inc., and O. L. Ansley (as administrator of the estate of Hugh Ansley) brought this action against appellant Laurie Dunn Ansley seeking temporary and permanent injunctive relief prohibiting appellant from taking delivery or possession of a certain 1984 Ferrari automobile. A temporary, 30-day injunction was granted, but has since expired and is not at issue in this appeal. The petition was later amended by Sunbelt Investments, Inc. to include a prayer for relief that title to the 1984 Ferrari be decreed to be in that corporation. Following discovery all parties moved for summary judgment, which was granted appellees and denied appellant.
1. Appellant’s first enumeration challenges the trial court’s summary judgment order on the ground that appellees could not set aside pursuant to OCGA § 14-2-153 a legal conveyance made by the sole shareholder, director and president of appellee Sunbelt Investments, Inc. to himself and then to appellant. The statute provides inter alia that a corporation may bring an action against its directors or officers
2. Appellant’s second enumeration cites as error the trial court’s inherent ruling as a matter of law that Hugh Ansley’s inter vivos gift of the Ferrari to appellant was not complete and valid prior to the time of his death. We will assume for the purposes of our discussion of this issue that Hugh Ansley was authorized to utilize the corporate funds of Sunbelt Investments, Inc. for the purpose of purchasing an automobile as a gift for his wife, appellant herein. “To constitute a valid inter vivos gift, the following criteria must be met: (1) The donor must intend to give the gift; (2) The donee must accept the gift; and (3) The gift must be delivered or some act which under law is accepted as a substitute for delivery must be done.” OCGA § 44-5-80. As to these three criteria, only the matter of delivery is at issue in this case.
“A delivery is essential to the validity of a gift; there must be an actual, constructive, or symbolical delivery of the property to the do-nee, or to someone for him, in execution of the gift, and for the express purpose of consummating it . . . This requirement is founded both on grounds of public policy and convenience, to prevent mistake, imposition, and perjury, and on the fact that, until delivery, the gift is inchoate and revocable, and the title does not pass. Without a complete delivery there can be no valid gift inter vivos, although every other step is taken that is essential to the validity of the gift; neither intention, nor mere words alone, except where the donee at the time is in possession of tangible property, or of tangible evidence of a right
The undisputed facts of record disclose that the subject Ferrari had not yet been purchased at the time of Hugh Ansley’s death, and thus could not possibly have been delivered to appellant during his lifetime. Compare McKinney v. Timber Equip., 160 Ga. App. 900 (288 SE2d 610) (1982); Williams v. McElroy, 35 Ga. App. 420 (2) (133 SE 297) (1926). Under the circumstances in this case, and in light of the above-cited authority, we find that the trial court properly granted appellees’ motion for summary judgment, effectively placing title and the right of possession to the subject Ferrari in appellee Sunbelt Investments, Inc.
Judgment affirmed.
Due to a potential conflict of interest in representing both the corporate appellees and the estate of Hugh Ansley, counsel for appellees sought direction from the trial court and,
Notwithstanding the very general language of the summary judgment order, it is apparent that the issue of permanent injunctive relief originally sought by all appellees has likewise been abandoned, and in any event is now moot, it appearing that the intended effect of the trial court’s order has provided an adequate remedy at law by granting the only prayer for relief which was actively pursued by any of the appellees, viz, that title to the subject automobile be decreed to be in Sunbelt Investments, Inc. See generally OCGA § 23-1-4. See also Mallory Bros. &c. v. Cowart, 90 Ga. 600, 605-07 (16 SE 658) (1892).
We assume that the apparent inconsistencies in the record as to the dates of certain transactions are due merely to typographical errors which escaped detection during proofreading.
O. L. Ansley, in addition to being the administrator of the estate of Hugh Ansley, was elected president and chief operating officer of Sunbelt Investments, Inc. following the death of Hugh Ansley and prior to the filing of the complaint in this case.