*1 appellees. Franklin, Jr., for Herbert E. BANK. TRUST v. CITIZENS CROWDER
A94A0511. (444 SE2d promissory debt, to secure note and a deed a executed Defendant subject property. granting Defend- interest a protection. bankruptcy After and filed for the note ant defaulted on obtaining stay, plaintiff on the foreclosed from the automatic relief subsequently property defend- filed a writ Magistrate alleging at The ant, to be a tenant sufferance. defendant possession, County and defendant a issued writ of Fulton Court appealed County, de- which affirmed the State Court of Fulton appeal pro magistrate. from Defendant, se, filed direct a cision of of the state court. the order appeal the decision of is taken from to this Court “Because the magistrate reviewing a de novo court a decision court state subject subject
proceeding involving to a matter not otherwise discretionary appeal procedures appeal, § 5-6- of OCGA of direct appeal [Cit.]; OCGA must be dismissed. and this 35 were American/Mortgage Corp., (a) (11).” Barclays Lewis 5-6-35 App. 227 Birdsong, Appeal Blackburn, J., concur. P. dismissed. denied June pro Crowder, se. Halbert appellee. Ellenberg McBryan, Associates, Louis G. & et al. HITCHCOCK v. TOLLISON A94A0617. (444 SE2d Presiding Judge. Birdsong, superior appeal judgment from the This is appellees/plaintiffs. real sold favor of granting property con- and tendered simple; veying time, a mort- in fee said gage The war- disclosed that was not following notation contained the deed delivered typed top: Preparation “No at the Title Examination Was Made purchase, Of This Deed.” time of executed a deed to grantee purchase price secure debt for the premises. Appellees subsequently failed to make allegedly discovery lant, to their late the existence of a by appellant third-party delivered bank. How- *2 quitting realty, ever, at the time of their some evidence of rec- monthly payments, ord exists in that were arrear on their bankruptcy. Appellees pay and had filed for also failed to taxes on the premises. appellees quit making payments, appellant had payments maintained all adverse his on deed and there nowas pending challenging appellees’ claim the courts simple. Appellees under color of title fee sued for warranty asserting, breach of ranty alia, of title inter the breach of war- warranty
of freedom from encumbrances and breach of of appellant against appellees sell; to counterclaimed for breach of deed by failing pay jury covenants of taxes. The rendered verdict in favor appellees/plaintiffs against appellant/cross- on the main claim and plaintiff on the counterclaim. Held: denying 1. claims the trial court erred his motion for
summary judgment; pretermitting this issue is whether reversible er- denying appellant’s ror occurred in motion for directed verdict. See 2 Division below. Appellant, citing (80 901); 2. Tidwell, Turner v. SE (64 113); 132 Collins, Ga. 349 SE Clements 59 Ga. (297 341); App. Akins v. 164 Ga. 705 SE2d and McElmur- ray App. superior ap- v. Marshall, 37 Ga. contends the erred his motion directed verdict. essence pellant argues give law, as a matter of the evidence fails to rise jury warranty to a been issue toas breach of of because there has yield were forced to title as “appellant paid outstanding security all the and the reason the lost their title was because of their appellant.” Appellees argue own default on the deed to that a
jury warranty issue exists as of freedom from encum- brances, and that this breach occurred at the time of execution of the warranty appellant grantees and without the necessity arising of an actual or constructive eviction from a third- (We party equity claim of title. note case none hands.) appeared spotless of these could have clean Appellees’ App. Lee, citations to West v. 57 Ga. App. (implied Pollard, Cook v. 50 Ga. full war- arising personalty) inapposite of title from sale of are as to this inapposite executory issue; also are suits for breach of contract. See generally Inc. v. (1) 515); Anderson, Keel However, in Teems arising from a breach held it was the conditions in accordance with land should be assessed of title to existing because covenant was at the time when the all, is at least techni- a covenant of breached breach of cally In Northside Title into.” the covenant entered breached when a war- Simmons, where Co. v. &c. ranty notwithstanding existing lien federal tax deed was delivered conveyance property, “[a]t of this the time it was stated Accordingly, appel- of encumbrances. . . the was free . co-tenant, to Wooster for breach lee, would be liable However, as well as her warranty.” fact, not, in as- was of their signed tax “[a]fter the federal until the claim breach paid Thus, the encumbrance lien Id. and the was removed.” was assigned discharged claim. before was been provides: gen “A modifies common cove of all includes eral of title the claims quiet enjoyment, sell, from en and of freedom nants &c. v. Stewart cumbrances.” White 590), Supreme [for “These sections Court observed: *3 currently merly §§ §§ and Civil 3614 and OCGA 44-5-62 Code clearly respectively] the indicate that the distinction between usually convey warranty, recognized covenants of most necessary and of jurisdictions, longer far is in this State so as what exist
to constitute a breach such covenants. Under general warranty against practi the title the claims of all cally in and stands the covenant of at common good right covenant of cludes in itself what was there known as the convey. frequently held, the This ‘In an action for court has upon the breach of a covenant of plaintiff of title the burden outstanding paramount . . . title.’ to show eviction under recognized everywhere to constitute a The' rule seems to be quiet enjoyment, an evic the or for breach of tion or that covenant by paramount equivalent occur, must disturbance title paramount outstanding will not title mere existence of an the (2) McElmurray supra v. Akins, See at 706 constitute breach.” supra supra; compare v. McMul Burns at 349 (1) (45 Co., Reid v. len v. Butler & 30 Ga. 554). en- created an Whether existence of the (com- realty outstanding against the rather than an title cumbrance pare v. definition of encumbrance Weatherly necessary. supra Parr, v. no actual eviction was However, 883, of mere exis- tence of an encumbrance has been held to be insufficient. Palmer, 227, Cheatham v. it was held (OCGA 44-5-62; under the statutes of 44-5-63), this state “there is §§ embraced the term warranty, by implication, spe cific warranties which the common express. law to be In or seizin, (that der to recover on a is, the loss of seizin evic tion,) proved. had to be . . . against encumbrances, a covenant [0]n condition outstanding action [is] of a valid encumbrance at the date of the affecting prop covenant erty conveyed, discharge and its by the covenantee.” sup plied.) Sawyer Accord Coal &c. Co. v. Co., Kinnett-Odom (4) (14 879) (actual eviction necessary good faith discharged the acquired encumbrance or presently him); about to be against enforced State Mut. Ins. Co. v. Co., Ins. (1) (71 McJenkin &c. over ruled on grounds, other supra at 734 Parr, Weatherly see supra. The evidence, record reveals no di indirect, rect or ever discharged alleged encum acquired brance or title that was about to be enforced in regard them at issue. Accord ingly, the trial court erred in denying appellant’s motion for directed Palmer, verdict. Cheatham v. supra; Sawyer Coal &c. Co. v. Kinnett- Co., Odom supra; State Mut. Ins. Co. v. McJenkin Ins. supra; Weatherly Parr, supra; compare Kinzy Waddell, (general warranty deed as to title delivered at existed) loan by grantor deed executed with Osburn v. Pritchard, (general warranty deed as to title delivered at time outstanding mortgage executed to third by existed). person another holding, view of this the other enumerations of error
lant need not be addressed.
Judgment J., Blackburn, reversed. concurs. concurs specially.
Blackburn, Judge, concurring specially.
I must concur specially with
majority
as we are constrained
*4
to follow
our
requiring plaintiff to establish an actual or
constructive eviction under
to an
action for
of title. See Akins v.
McElmurray
670) (1927);
113) (1909); McMullen v. Butler & 554) (1923). Reid Such a requirement contemplated by not provides the statute which “[i]n actions for breach proof the burden of is on the plaintiff except paid encumbrances have been cases where yielded consequence pro- legal
off or has been as a ceedings opportunity of which the warrantor had notice and an to de- supplied.) Furthermore, fend.” 44-5-64. we have determined that breach of a covenant of technically all, is breached at at least breached when the covenant is damages entered into and the dance with the conditions as are therefore to be assessed in accor- they existed at that time.” If the of covenant is breached developed essary the time it is additional element courts, i.e., eviction, constructive or actual is unnec- merely may may increases or not be recov- erable. See id. denied June appellant. Burns, D.
Joel for Rogers, Wayne
D. COMPANY, A94A0717.CHARLES S. DISTRIBUTING MARTIN INC. et al. v. BERNHARDT FURNITURE COMPANY. Johnson, Company open Bernhardt Furniture sold furniture on an account (CSM). Distributing Company, to Charles S. Martin Bernhardt personal guarantor, claiming Martin, in- sued CSM and William plus principal $146,659, debtedness on the account amount of pre-judgment interest. Bernhardt and Martin filed cross-motions for summary judgment. granted partial summary judg- The trial court holding genuine Bernhardt, ment that there is no issue of material fact that both CSM and principal Martin are indebted to Bernhardt $145,157.
amount The court denied Bernhardt’s motion principal pre-judgment as to the further amount claimed and the sought. summary judg- interest ment. CSM and Martin The court denied Martin’s motion for appeal.
jointly 1. Martin contends that the court erred his motion summary judgment sign personal guarantee of because he did not satisfy CSM’s debt and therefore it of frauds. does the statute one-page April 24, 1978, The record contains a document dated signatures appear entitled, “PERSONAL No GUARANTEE.” page, guarantor states, but the last line of the document “The