Aрpellant/plaintiff Ernie Pauline Quinn Thornton b/n/f Wendell Thornton appeals from the order of the superior court granting summary judgment to appellees/defendants Donald R. Carpenter and Eddie Edenfield. This is an action, brought by an allegedly incompetent person by her guardian and next friend (see generally
Wynne v. Fisher,
In November 1989, without the knowledge of her now sole surviving son Wendell Thornton, appellant Ernie Thornton personally transferred the property at issue to her son and attorney in fаct, James Thornton. James Thornton died in November 1992; he was survived by his wife, Wanda Thornton, who was appointed executrix of his estate. In January 1993, defendant Moody paid $5,000 for an option to purchase the property. On February 5, 1993, Moody received a letter from the attorney of Wendell Thornton notifying him that Wendell questioned his mother’s competence to convey the property and if the matter could not be resolved, suit would be initiated to set aside the 1989 conveyance. Moody contacted Wanda Thornton who advised him there was no basis for Wendell’s claim, and that unless suit was filed the $5,000 would not be returned to Moody. Moody subsequently obtained a title search to the property.
On February 11, 1993 the property was conveyed to Moody by Wanda Thornton by means of a warranty deed; Moody pledged the property as collateral to the Broxton State Bank by deed to secure a $44,000 debt. That same day, Moody also pledged the property as collateral to Jimmy Bryant as a so-called second mortgаge by executing a deed to secure a $37,500 debt with power of sale. Prior to exercising his option to purchase, Moody was aware appellee Carpenter was looking for property for a farm, and had a “deal” with Carpenter.
On February 12, 1993, Moody executed a quitclaim deed conveying the property to appellee Carpenter. Moody did not inform Carpenter about Wendell Thornton’s claim or of the letter from his attorney. Although no transfer tax was paid on the deed to Carpenter, there exists evidence of record that he tendered $1,000 for the property and timely commenced and continued making the payments due on the security interest held by the bank and to which the property remained subject. This payment scheme became known to and was, at least, tacitly consented to by the Broxton State Bank. However, Moody concedes that he remained personally liable on the instruments of indebtedness if Carpenter failed to make timely payments. Moody further testified that he made a profit of ten percent or $7,500 on the property sale to Carpenter as the property cost only $75,000 and the mortgage loan was for $82,500. Carpenter, by way of affidavit, stated under oath that he purchased the property for а total consideration of $83,500, and that he had no notice either before or dur ing the transaction of sale of any claim against the property. Subsequently, Moody learned that appellee Edenfield wanted to purchase some property; Moоdy contacted Carpenter and ascertained the latter would sell a corner of the land to Edenfield.
On April 23, 1993, Wendell Thornton was appointed as emergency and permanent guardian of the person and property of appellant Erniе Thornton who was judicially determined to be incapacitated; appellant’s incapacity was determined to be total and complete as contemplated by OCGA § 29-5-1. See generally OCGA §§ 29-5-3 (a) and (b) (6); 29-5-8. The subsequent order appointing Wendell Thornton аs permanent guardian expressly included the power “to
On May 12, 1993, Carpenter conveyed a portion of the property to appellee Edenfield by warranty deed for $10,000. This warranty deed was not filed until June 3, 1993. Edenfield then executed a deed to secure debt on behalf of Carpenter for $8,000 and apparently paid him the remaining $2,000 in cash. By way of affidavit, Edenfield stated that neither before nor during the transaction of sale did he have notice of any claim against the property. On May 19, 1993, this suit was filed in superior court and a lis pendens notice was duly recorded pursuant to the provisions of OCGA § 44-14-610.
Appellant enumerates that the trial court erred by granting Carpenter’s and Edenfield’s motions for summary judgment, by holding as a matter of law that Carpenter and Edenfield were entitled to the protection of bona fide purchasers, by holding that no question of fact existed as to the relationship of agency between defendants Moody and Carpenter whereby Carpenter would be charged with the notice given Moody as to aрpellant’s claim, and by failing to hold that the personal representative of an incompetent grantor could void a deed made by said grantor. Held:
1. The applicable summary judgment standard is that of
Lau’s Corp. v. Haskins,
2. As the parties appear to concede that Edenfield took title with notice of this pending action, the basic issue before us is whether Carpenter is both a bona fide purchaser for value and entitled to protection against the claims of an incompetent grantor; if so, the trial court did not err in granting summary judgment to Edenfield and Carpenter.
(a) Appellant’s contention that a genuine issue of material fact exists as to an agency relationship existing between Moody and Carpenter, which would cause Carpenter to be charged with the notice given Moody as to appellant’s claim, is without merit. Appelleе Carpenter stated under oath in his affidavit that at no time prior to his purchasing of the property had Moody acted as his agent in regard to the property at issue. This statement stands legally unrefuted. A denial of an agency relationship, made by a purрorted party thereto, is a statement of fact sufficient to support a motion for summary judgment when uncontradicted. See
McDaniel v. Peterborough Cablevision,
(b) We need not here address the validity of the power of attorney obtained from Ernie Thornton by her son, James, as the property in question was conveyed directly by Ernie to her son, James, and was nоt conveyed by James to himself while acting under color of authority as an attorney in fact. The trial court held and we agree that, as a general rule, a power of attorney “merely authorizes another [agent] to do what the grantor [principаl] could do with respect to the recited subject matter. The grantor retains the right to act in [his] own name with respect to that subject matter, notwithstanding [his] execution of the power of attorney.” The trial court did not err in concluding that “the recorded power of attorney did not
impose upon persons dealing with the property the burden of making inquiries into subsequent transactions between plaintiff [Ernie Thornton] and the late [James Thornton] involving the same property [here at issue].”
McGahee v. Walden,
(c) The conveyance by quitclaim deed to grantee, appellee Carpenter, did not standing alone constitute constructive knowledge to Carpenter of any claims pending against the grantor, defendant Moody. See
Mathis v. Blanks,
(d) Pretermitting whether appellee Carpenter was a bona fide purchaser for value (having paid only a $1,000 down payment for the property and apparently having agreed to take the property subject to a certain secured indebtedness thereon and thereafter having made timely payments on the indebtedness; compare
Ross v. Rambo,
The general provisions of OCGA § 23-1-19 (formerly Code Ann. § 37-114) are not here controlling. See
Chestnut v. Weekes,
Judgment reversed.