Durden v. Hilton Head Bank &Amp; Trust Company, N.A., 198 Ga. App. 232, 401 S.E.2d 539 (1990)

Status: DECIDED

Docket Number: A90A1519

Parts: BEASLEY, Judge.

Linked as:

Summary

Judgment affirmed. Carley, C. J., Birdsong, Sognier and Cooper, JJ., concur. Deen, P. J., McMurray, P. J., Banke, P. J., and Pope, J., dissent.

Summary

Judgment affirmed. Carley, C. J., Birdsong, Sognier and Cooper, JJ., concur. Deen, P. J., McMurray, P. J., Banke, P. J., and Pope, J., dissent.

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J. Alvin Leaphart, for appellant.

Appellant William E. Durden and appellee Hilton Head Bank & Trust Company, N.A. each hold a deed to secure debt conveying the same parcel of property from Nan Sun Nakagawa. After fire destroyed the improvements on the property, the insurer filed this interpleader action and paid the proceeds of the insurance policy into the registry of the court. This appeal results from the trial court's grant of summary judgment to the bank finding that its deed to secure debt took priority over Durden's deed.

Nakagawa and Durden approached attorney John Hunter after they agreed that Nakagawa would purchase the Lamp Post Lounge from Durden and asked Hunter to prepare a bill of sale, a promissory note and a deed to secure debt conveying Lot 58 of Greenbriar Subdivision from Nakagawa to Durden. Hunter did so. He was not asked to search the title on the property and did not do so. He did not make a file on this transaction. Upon execution of the documents, Durden took delivery and possession of the deed to secure debt. By its terms, the promissory note was due and payable in February 1986. The deed to secure debt was not recorded until May 16, 1987.

In early November 1986, Nakagawa contacted Hunter and asked if he could handle a closing for her. Subsequently, the bank retained Hunter to act as closing attorney in connection with a Joan it was making to Nakagawa to be secured by the same property described in the Durden deed. Hunter did not remember that fact and due to the non-recording of the earlier deed he did not discover it during the title examination performed in connection with the loan closing for the bank. The deed to secure debt in favor of the bank was recorded on November 5, 1986.

The trial court recognized that Hunter was a dual agent of Nakagawa and of the bank. The trial court also recognized the principle set out in Bean v. Barron, 193 Ga. App. 597, 599 (2) (388 SE2d 730) (1989), we hold that the trial court was correct. Durden will have to suffer the consequences of the rule of law contained in OCGA 44-2-1.

POPE, Judge, dissenting.

I must respectfully dissent. Material factual issues remain and summary judgment is improper. The majority relies on the first part of the holding of Bean v. Barron, 193 Ga. App. 597, 599 (2) (388 SE2d 730) (1989). It is for a jury to determine whether Hunter should have remembered after 11 months that he previously prepared a deed for the same property owned by Nakagawa.

I am not persuaded differently by Fowler v. Latham, 201 Ga. 68 (3) (38 SE2d 732) (1946). That case also involved an attorney who had drawn an earlier unrecorded deed. However, in Fowler, the time between the drawing of the first deed and the time the opposing party sought to have the attorney charged with that knowledge was 16 years. Fowler, supra at 75. A passage of 16 years certainly removes the assumption that the knowledge was acquired so recently so as to warrant the conclusion that the knowledge would still be retained. The same cannot be said for a period of only 11 months. Although a jury may determine that the outcome should be as it was decided by the trial court, nonetheless it is not for summary adjudication.

I am authorized to state that Presiding Judge Deen, Presiding Judge McMurray, and Presiding Judge Banke join in this dissent.

Brennan, Harris & Rominger, Richard J. Harris, for appellee.

1990