v.ndegriff Et Al. v. Hamilton., 238 Ga. App. 603, 519 S.E.2d 702 (1999)

Georgia Court Of Appeals

Status: DECIDED

Docket Number: A99A1429

Parts: JOHNSON, Chief Judge.

Linked as:

Summary

Judgment affirmed. Smith and Eldridge, JJ., concur.

Summary

Judgment affirmed. Smith and Eldridge, JJ., concur.

Text

Robert Hamilton sued Joseph Vandegriff and Janet Vandegriff on a promissory note. The record shows that Hamilton advanced $102,500 to the Vandegriffs. To insure payment of the debt, Hamilton took a security interest in the Vandegriffs' share in a tract of property owned jointly by Hamilton and the Vandegriffs. In addition, the Vandegriffs executed a promissory note to Hamilton in the amount of $102,500, due on or before September 18, 1994.

The trial court granted Hamilton's motion for summary judgment and entered judgment based on the promissory note. The Vandegriffs contend Hamilton orally agreed to accept a deed to their one-third interest in the property as full payment of the note and that the trial court, therefore, erred in failing to require Hamilton to accept the property as payment of the note in full. We disagree and affirm the trial court.

In an action on a promissory note, a movant may establish a prima facie right to judgment as a matter of law by producing the promissory note and showing that it was executed. See OCGA 11-3-308; McLemore v. Southwest Ga. Farm Credit, 230 Ga. App. 85, 87 (1) (495 SE2d 335) (1998); Braswell v. Bank of Early, 229 Ga. App. 445, 447 (494 SE2d 277) (1997). The Vandegriffs' admission that they borrowed the money, signed the note, and defaulted established Hamilton's prima facie case. Having established this, Hamilton was entitled to judgment unless the Vandegriffs established a valid defense. See McLemore, supra.

The Vandegriffs' contention regarding Hamilton's oral representations does not establish such a defense. A creditor who holds a promissory note secured by a deed may sue upon the note, demand a deed to the secured property, or pursue both remedies until the debt is satisfied. See Vaughan v. Moore, 202 Ga. App. 592 (415 SE2d 47) (1992). Thus, Hamilton was entitled to elect his remedy to cure the default. Moreover, it is well established that in the absence of fraud, accident or mistake, none of which has been alleged or proven in the present case, parol evidence cannot be considered to alter or vary the terms of a promissory note. Hovendick v. Presidential Financial Corp., 230 Ga. App. 502, 504 (1) (497 SE2d 269) (1998); McLemore, supra; Braswell, supra. Because the Vandegriffs failed to raise a valid defense, Hamilton was entitled to judgment on the note, and the trial court properly entered summary judgment in favor of Hamilton.

Kimzey, Kimzey & York, M. Keith York, for appellants.