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In the Supreme Court of Georgia

Decided: March 25, 2010

S09A1510. MONTGOMERY et al. v. BARROW et al.

CARLEY, Presiding Justice. Barrow & Byrd Properties, Inc. (B & B), purchased approximately 223 acres of land from the estate of Cauley Barrow for $247,800. Lamar and Robbie Ann Montgomery, as executors of the estate of Robert Barrow (Executors), filed an action to quiet title and for other relief, claiming that Robert Barrow, who was the son of Cauley Barrow, owned the property from 1975 until his death in 2000, pursuant to four unrecorded warranty deeds transferring the property from his father to him. B & B answered that it was a bona fide purchaser for value without notice of the unrecorded deeds. A jury trial was held solely as to the issue of whether Robert Barrow had owned the property. The jury returned a verdict finding that Robert Barrow had not owned the property by prescription, but that he had owned it at the time of his death by virtue of the unrecorded deeds. Several months later, the parties filed opposing motions for summary judgment on the issue of whether B & B was a bona fide purchaser without

notice of the unrecorded deeds. The trial court denied the motion filed by Executors, but granted summary judgment in favor of B & B. Executors appeal. 1. Executors contend that the trial court erred in denying their summary judgment motion and granting summary judgment in favor of B & B because the evidence shows that B & B had notice sufficient to preclude it from being a bona fide purchaser for value without notice. "A bona fide purchaser for value is protected against outstanding interests in land of which the purchaser has no notice. [Cits.]" Farris v. Nationsbanc Mortgage Corp., 268 Ga. 769, 771 (2) (493 SE2d 143) (1997) Indeed, "there is a presumption of good faith which attaches to a purchaser for value and which remains until overcome by proof. [Cit.]." Anderson v. Streck, 190 Ga. App. 224, 226 (378 SE2d 526) (1989). However, "[a]ny circumstance which would place a man of ordinary prudence fully upon his guard, and induce serious inquiry, is sufficient to constitute notice of a prior unrecorded deed. And a younger deed, taken with such notice, acquires no preference by being recorded in due time." [Cit.] Price v. Watts, 223 Ga. 805, 806 (2) (158 SE2d 406) (1967). Executors base their challenge to the trial court's summary judgment rulings on the testimony of Homer Barrow, one of the owners of B & B. He 2

testified that the executor of the estate of Cauley Barrow told him that title to the property was in Cauley Barrow's name at the time of his death, and that a title search confirmed that claim. His partner in B & B, Garland Byrd, Jr., also testified that a title search showed that Cauley Barrow owned the property at the time of his death. However, Homer Barrow further testified that Eddie Davis, Executors' attorney, told him that Executors said that they had unrecorded deeds to the property. Homer Barrow asked Davis to provide copies of the deeds, but Executors repeatedly failed to provide such copies to Davis or B & B. Executors eventually claimed that the deeds had been destroyed in a fire. Davis testified that because Executors could not provide copies of the deeds, he "began to assume they did not exist." It was not until Executors filed this lawsuit that they came forward with copies of the unrecorded deeds, attaching them to the complaint. The dissent claims that, in addition to the evidence cited by Executors, there is other undisputed evidence in the record which demands summary judgment in favor of Executors. According to the dissent, most telling is the evidence that Homer Barrow discussed buying the property from Robert Barrow. Dennis Verdan, a longtime friend of Robert Barrow, gave hearsay 3

testimony claiming that Robert Barrow told him that Homer Barrow had offered to buy the property. When Homer Barrow was asked about that claim, he testified that he did not remember making such an offer. He explained that Robert Barrow called him and asked for help paying off debts owed on the property by either buying it or helping sell it, but he did not believe that he would have offered to buy the property at that point because of the uncertainty concerning those debts. He further testified that, at that time, he did not know who owned the property, and that Robert Barrow never claimed ownership or mentioned the unrecorded deeds to him. To prevail at summary judgment under OCGA

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Georgia Law