Merlesaw, Inc. v. Barnes

215 S.E.2d 9, 234 Ga. 228, 1975 Ga. LEXIS 1088

• Court: Supreme Court of Georgia
• Decided: April 22, 1975
• Docket: 29592
• Status: Published

Opinion

Gunter, Justice.

This case involves a contest between the holders of security deeds, both of which are admittedly inferior to a first-lien security deed. The Merlesaw security deed and the Barnes security deed were both dated the same day and executed by the same grantor. The Merlesaw security deed was recorded first. However, the Barnes security deed was foreclosed first, September 3,1968, with Barnes as purchaser; and the Merlesaw security deed was then foreclosed on October 7, 1968, with Merlesaw as purchaser.

Barnes went into possession of the property, made improvements upon it, and made the monthly payments on the first-lien security deed. In February of 1969, Mrs. Barnes filed her complaint against Merlesaw and two other defendants in which she contended that they had fraudulently and in concert arranged to have the Merlesaw security deed recorded prior to her security deed. She contended that her security deed had constituted a second-lien on the property, and that the Merlesaw security deed, although recorded first, was a third-lien security deed inferior to hers. She sought cancellation of the Merlesaw foreclosure deed as a cloud upon her title.

Merlesaw filed a cross claim which contended that its prior recorded security deed took precedence over the Barnes security deed and that the Barnes foreclosure deed was inferior to its foreclosure deed. Merlesaw sought cancellation of the Barnes foreclosure deed as a cloud upon its title.

The trial of the case, though filed in 1969, took place in 1974 before the trial judge without the intervention of a jury.

Submitted January 17, 1975 Decided April 22, 1975. J. C. Daugherty, for appellant. Joseph S. Crespi, for appellee.

The trial judge entered findings of fact, conclusions of law, and a judgment which held Mrs. Barnes’ title to be superior to that of Merlesaw, but held that Mrs. Barnes had to pay Merlesaw its secured indebtedness, principal and interest.

Merlesaw has appealed, and its only substantial contention here is that there is no evidence to support Mrs. Barnes’ claim that Merlesaw conspired with the other two defendants to make Mrs. Barnes’ security deed inferior to its deed by delaying the recording of the Barnes deed until the Merlesaw deed had already been recorded.

We have carefully reviewed the evidence, and we conclude that it does support the decision reached by the trial judge.

Judgment affirmed.

All the Justices concur.