Nоnresident appellants, the Quistgaards, executed a promissory note in favor of appellee-DeLowe Partners, Ltd., to purchase apartment property. The indebtedness was secured by a deed on the property. This property was subsequently sold to Areawide Enterprises, Inc. As a part of the sales agreement, Areawide assumed and agreed to pay appellant’s outstanding indebtedness against the property, evidenced by the above-mentioned note and deed to secure debt. Upon Areawide’s default, appellee brought suit against the appellants as original makers to enforce the original obligation, and against Areawide and DeLowe Gardens, Ltd., a subsequent grantee. The Quistgaards appeal from an order finding them subject to personal jurisdiction and entering summary judgmеnt in favor of appellee-holder of the note.
1. Appellants, citing
Hemphill v. Con-Chem, Inc.,
We are in agreement with appellants’ basic premise. Because jurisdictional questions are matters in abatement, such questions are not properly resolved on motion for summary judgment.
Wyco, Inc. v. Bosce Die Casting Co.,
2. Appellants’ counsel argues that the Quistgaards had virtually no contact with this state: the Quistgaards are nonresidents who never came to Georgia; they executed the note and security deed in Washington State and mailed the note and seсurity deed to Georgia; all other contact with this state was accomplished by telephone or mail, and all of the closing transactions and recordations were effected by the. co-ownеr’s attorney. It is submitted that the trial court was not authorized to find that jurisdiction existed under the facts of this case. We disagree.
A. ' We reject appellants’ argument that in personam jurisdiction may not be prediсated on appellants’ "ownership, use or possession of property” (see Code Ann. § 24-113.1 (d)) because nonresident appellants no longer own the property. The fact that appellаnts divested themselves of their interest in the property prior to the filing of appellee’s complaint will not defeat the exercise of jurisdiction if such an exercise is otherwise constitutionally permissible.
Cox v. Long,
B. In
Cox v. Long,
supra, this court held that in personam jurisdiction could be exercised pursuant to our Long Arm Statute when the cause of action arosе from the defendant’s sale of defendant’s Georgia realty. There, by owning land in Georgia, the defendant had invoked the benéfits and protection of Georgia’s law of real property, including as an incident оf ownership the right to sell the property. Attaching to ownership rights was the
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concomitant obligation to defend a suit in Georgia concerning an alleged breach of the sales contract. Accоrd, Peterson v. Ely,
C. The mere fact of title ownership of realty in Georgia will not support the exercise of personal jurisdiction. Jurisdiction must be predicаted on the existence of ties among the defendants, this state, and the litigation, so that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. Shaffer v. Heitner,
The instаnt case involves a suit on a note executed by nonresident purchasers for the purpose of becoming record title owners in improved Georgia realty. Since the note was executed by the nonresident purchasers with full knowledge that the note would be used in conjunction with, and an integral part of, a Georgia real estate transaction, a substantial enough connection with this state existed so as to make the exercise of jurisdiction over the nonresident defendants reasonable. Because we find that Code Ann. § 24-113.1 (d) confers jurisdictional basis consistent with constitutional requirements, it is unnecessary to determine whether jurisdiction could also be predicated on Code Ann. § 24-113.1 (a).
3. In support of its motion for summary judgment, plaintiff-movant submitted the affidavit of the current president of the general partner of appellee-limited partnership. The affidavit recited that "the Plaintiff [appellee] has never agreed with any person, firm or corporation, including the Defendants, that any payment due or to become due to the Plaintiff pursuant to the terms of the Promissory Note could be paid at a later time or in any different manner or amount than that as set forth in the Promissory Note.” Appellee submits that this affidavit, in conjunction with unrefuted evidence of appellants’ execution of the note sued on and subsequent default thereon by appellants’ grantee (Areawide/ DeLowe Gardens), demanded summary judgment
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in its favor. See
LDH Properties, Inc. v. Morgan Guaranty &c. Co. of N. Y.,
Becаuse we find genuine issues as to material fact, we. must take issue with appellee’s position and reverse the grant of summary judgment.
Appellants raised an issuable defense. In opposition to the motion fоr summary judgment, appellants argued that Areawide’s assumption and agreement to pay the appellants’ outstanding indebtedness against the property, in conjunction with appellee’s assent to the same, changed appellants’ status from that of principal obligor to that of surety by operation of law. See
Stapler v. Anderson,
By way of the pleadings, affidavits and depositions, evidence was presented that appellee had accelerated Areawide’s obligation on default and had commenced foreclosure proceedings, and that appellee had, unilaterally and without cоnsent of appellants, withdrawn the foreclosure and reinstated the loan. Evidence was produced that the loan was reinstated upon payment to appellee’s attorney of the costs of foreclosure and a payment to appellee in excess of the amount owed for arrearages. Appellants argue that this evidence would authorize a finding that when appellee accepted such foreclosure costs and additional sums constituting prepayment of principal and interest in excess of the amounts owed for arrearages on Areawide’s debt, it agreed to forbear, for value received, the rights to accelerate and foreclose which had existed by reason of Areawide’s default, and that appellee was thereby legally precluded from taking further action until Areawide’s subsequent default. It is submitted that a jury issue existed as to whether appellee’s action in allowing the default to be cured not only bound appellee, but also deprived appellants of the right to pursue their remedies concerning Areawide’s original default, which right and remedies they had by virtue of such assumption agreement with Areawide.
Genuine issues of material fact remаin as to whether appellants had become a surety by operation of law and, if so, whether the surety was released because of the
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creditor’s neglect, for consideration, to vigorously рrosecute legal remedies. Code Ann. § 103-203. Cf.
First Nat. Bank of Blakely v. Chipstead,
Appellee failed to produce evidence which demanded a finding that as a matter of law the above defenses were untrue. (See Division 4 of this opinion.) Accordingly, the summary judgment must be reversed.
Hurston v. Dealers Service Plan, Inc.,
4. We reject appellee’s contention that appellants’ defense is rendered legally insufficient bеcause Code Ann. §67-1315 permits withdrawal of foreclosure proceedings prior to completion without prejudice to the right of the holder. That code provision does not eliminate fact questiоns as to whether the surety was discharged by reason of the withdrawal.
5. Because the grant of summary judgment was precluded for the reasons stated in Division 3, we need not examine whether alternative. legal theоries advanced by appellants would have also precluded summary judgment.
As to appellants’ defense that fact questions remained as to whether a discharge of their obligation as surety was aсcomplished by appellee’s acceptance of partial installment payments, and whether appellee thereby extended Areawide’s payment schedule, compare
Alropa Corp. v. Snyder,
supra, and
Benson v. Henning,
Judgment affirmed in part; reversed in part.