In 1994, litigation over golf course property resulted in a settlement agreement. Attached to the settlement agreement was an “option contract,” which provided for the purchase of the property from R.R.R. Limited Partnership (RRR) by the predecessors-in-interest of Cumberland Creek Properties, Inc. (CCP). The trial court incorporated the settlement agreement into a consent judgment. Thereafter, Appellants, who were not parties to the litigation or settlement, loaned money to RRR and recorded a deed to secure debt. In 1996, the trial court held RRR in contempt of the consent judgment, and this Court affirmed.
R.R.R. Ltd. Partnership v. Recreational Services,
1. About two months prior to the date of the execution of the security deed from RRR to Appellants, CCP properly recorded the option contract, with the property description attached.
When executed with the formality prescribed for the execution of deeds to land, options to purсhase land . . . may be recorded. . . . The record shall, from the date of filing, be notice of the interest and rights of the parties to the option to purchase in and with respect to the property described in the option to purchase. . . .
OCGA § 44-2-8. Under this statute, the recording of the option contract between RRR and CCP constituted constructive nоtice thereof to Appellants.
Banks v. Harden,
2. Appellants urge that they had insufficient nоtice of the terms *272 of the consent judgment, were not in privity with RRR, and, thus, cannot be held in contempt.
In Georgia and the majority of foreign jurisdictions, the violation of a court’s order by one who was not a party to the proceedings can be punished as a contempt only if it is “alleged and proved that the contemnor had
actual
notice of the order for disobedience of which he is sought to be punished. [Cits.]” (Emphasis supplied.)
Spence v. Woodman Co.,
There is no evidence that Appellants received actual notice of the consent judgment prior to making the loan to RRR and recording the security deed, or prior to their subsequent modification of the security deed. The recording of the option contract proves only Appellants’ constructive notice thereof. Even assuming that Appellants were told that there was a document governing the use of loan proceeds, this would not show actual notice of the consent judgment or of the requirement that a reserve fund be established and disbursed in a particular manner. Indeed, it “has been held that where the nonparty was aware of the existеnce of [an] injunction but had no knowledge of the specific acts enjoined, the nonparty was not in contempt of court. . . .” (Emphasis supplied.) Anno., supra at 897, § 2. Appellees also rely оn Appellants’ involvement in the RRR bankruptcy, but that bankruptcy was not initiated until long after disbursement of the loan funds and the recording and modification of Appellants’ security deed.
Moreover, there is no evidence that Appellants were in “privity” with RRR. In this context, the word “privity” is frequently used as *273 synonymous with the enumeration, in OCGA § 9-11-65 (d) and similar statutes and rules, of nonpartiеs who may be bound. 11A Wright, Miller & Kane, Fed. Prac. & Proc., Civil 2d § 2956, p. 340 (1995). Where a decree is entered against the grantor of real property, the grantee is not in contempt for violating that decreе, even if he had notice thereof, where there is no evidence of any relationship other than that of grantor-grantee. Anno., supra at 898, § 2. Appellees argue that RRR effectively represented Appellants’ interests in the previous contempt proceeding. However,
[p]rivity is not established merely because persons are interested in the same question or desirous of proving the same set of facts or because the issue being litigated is one that might affect their interests by providing a judicial precedent that would be applied in a subsequent action.
11A Wright, Miller & Kane, supra at § 2956, p. 341. Accordingly, we conclude that the trial court erred by holding Appellants in contempt.
3. With regard to the trial court’s authority to order Appellants to cancel their security deed, the option contract specifically permitted RRR to encumber the property with a deed to secure debt. The option contract also limited the amount of the note secured by such deed, and required a reserve from this amount to bе disbursed by the lender, and used by RRR, for the construction of the golf course. Appellants did not disburse the loan proceeds until after the execution of the security deed. Issues regarding the establishment of a reserve do not relate to the security deed itself, but to matters occurring after its execution. There is no evidence that the security deеd is void for any reason. Therefore, we find that the trial court was not authorized to order Appellants to cancel its deed to secure debt.
Glover v. Andros, 228
Ga. 183 (1) (
Although Appellees rely on OCGA § 9-11-70, that Codе section applies only after a judgment directing a party to perform specific acts is properly entered and the party has failed to comply within the time specified. 12 Wright, Miller & Marcus, Fed. Prac. & Proc. Civil 2d § 3021, p. 166 (1997). This proceeding has not reached the point of refusal by Appellants to cancel the security deed within the time specified. Indeed, Appellants did file a cancellation wherein they reserved their appellate rights. The trial court’s error was in ordering Appellants to cancel their security dеed in the first instance. Under *274 the evidence, the trial court was authorized only to find that Appellants’ valid security deed was subject to the terms of Appellees’ previously recorded valid option contract.
4. Appellants contend that the trial court also erred in denying their motion to set aside the consent judgment pursuant to OCGA § 9-11-60 (d) (3). Aрpellants were neither parties to the consent judgment, nor in privity with RRR, nor did they have any interest in the property at the time of the consent judgment. OCGA § 9-11-60 (d) does not authorize a non-party to bring a motion to set aside. Compare OCGA § 9-11-60 (a);
Betts v. First Ga. Bank,
5. Remaining enumerations of error are moot or otherwise controlled by our previous holdings. Accordingly, we affirm the trial court’s denial of Appellants’ motion to set aside, but reverse the trial court’s order regarding contempt and cancellation of the security deed.
Judgment affirmed in part, reversed in part.