KINSLEY v. UPSHAW

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Docket Number

60361.

Attorney(S)

James A. Elkins, Jr., for appellants. Albert W. Thompson, for appellee.

Judges

DEEN, Chief Judge.

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Smart Summary

Factual and Procedural Background

Luevenia Kinsley and her son, William, appealed the grant of a writ of possession in a dispossessory proceeding initiated by Audrey Upshaw. Mrs. Kinsley had conveyed her one-half interest in certain real property to her daughter, Mrs. Johnnie Mae Smith, who owned the other half. Mrs. Smith then conveyed the entire property to Audrey Upshaw on August 29, 1979. Upshaw notified Kinsley and William on September 20, 1979, demanding they vacate the premises. Upon their refusal, Upshaw filed a dispossessory action on October 23, 1979, alleging tenancy at sufferance. Mrs. Kinsley admitted possession but contended she had reversed a life estate when she conveyed her interest to Mrs. Smith. William claimed he was a guest of his mother on the premises. The trial court found Upshaw established a prima facie case of ownership and wrongful holding over by the defendants, ruled parol evidence inadmissible to vary the warranty deed, and granted the writ of possession.

Legal Issues Presented

Whether parol evidence is admissible to show consideration for or to vary the terms of a warranty deed in a dispossessory proceeding.
Whether the relationship between the parties was that of landlord and tenant at sufferance following the conveyance of property.
Whether the trial court erred in granting the dispossessory warrant based on the evidence presented.

Arguments of the Parties

Appellants' Arguments

The trial court erred in holding that parol evidence was inadmissible to show consideration for or to vary the terms of the warranty deed.
The trial court erred in concluding that the plaintiff was the landlord of the defendants.
The trial court erred in granting the dispossessory warrant against them.

The opinion does not contain a detailed account of the appellee's legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Chandler v. Ga. Chemical Works, 182 Ga. 419, 425 (185 S.E. 787) (1926)	A deed absolute in form may be shown to have been made to secure a debt where the maker remains in possession; actual possession constitutes notice to the world of the occupant's right or title.	Supported the concept that possession by Mrs. Kinsley could indicate an implied or resulting trust despite the warranty deed.
Mercer v. Morgan, 136 Ga. 632 (71 S.E. 1075)	Possession is notice of ownership; deeds may be shown to secure debts despite absolute form.	Reinforced the principle that possession is constructive notice, relevant to the dispute over ownership and possession.
Bridger v. Exchange Bank, 126 Ga. 821 (56 S.E. 97)	Actual possession is notice to the world of the occupant's right or title.	Supported the court's recognition of possession as notice in property disputes.
Austin v. Southern Home c. Assoc., 122 Ga. 439 (50 S.E. 382)	Possession as notice of ownership rights.	Used to affirm the principle that possession informs others of ownership claims.
Berry v. Williams, 141 Ga. 642 (81 S.E. 881) (1914)	Reiterates that possession may indicate ownership despite the form of deed.	Supported the argument that possession by Mrs. Kinsley could indicate an implied trust.
Freeman v. Saxton, 240 Ga. 309, 312 (240 S.E.2d 708) (1977)	Parol evidence may be introduced to impress a deed with an implied trust, even if an express oral trust cannot be engrafted.	Used to justify admission of parol evidence to show an implied trust in the present case.
Hemphill v. Hemphill, 176 Ga. 585, 590 (168 S.E. 878) (1932)	Express verbal agreements may rebut the inference of a gift and help establish implied trusts.	Supported the court's view that parol evidence may be relevant to implied trusts despite express agreements.
Harper v. Harper, 199 Ga. 26 (33 S.E.2d 154) (1945)	Implied trusts are not within the statute of frauds; parol evidence may show facts from which implied trusts are established.	Strongly supported the court’s conclusion that parol evidence should be admitted to establish an implied trust.
Arnold v. American Securities Co., 181 Ga. 354 (182 S.E. 3) (1935)	Municipal courts lack jurisdiction to grant affirmative equitable relief but may hear equitable defenses.	Clarified the municipal court’s jurisdictional limits relevant to this case.

Court's Reasoning and Analysis

The court analyzed the nature of the conveyance from Mrs. Kinsley to Mrs. Smith and subsequently to Audrey Upshaw, focusing on whether parol evidence could be admitted to show an implied or resulting trust that contradicted the warranty deed. Citing established Georgia precedents, the court explained that while an express oral trust cannot be imposed on an absolute deed, parol evidence may be introduced to establish an implied trust, particularly when the grantor remains in possession of the property. The court noted that Mrs. Kinsley's possession provided constructive notice to subsequent property holders, supporting the possibility of an implied trust. The trial court's refusal to admit such evidence was therefore erroneous. Although the municipal court cannot grant affirmative equitable relief, it can consider equitable defenses. Based on these principles, the court reversed the trial court’s ruling denying the admission of parol evidence and granting the writ of possession.

Holding and Implications

Judgment reversed.

The court's decision reverses the grant of the writ of possession, holding that parol evidence to establish an implied or resulting trust should have been admitted. This ruling affects the direct parties by allowing the appellants to present evidence that may challenge the plaintiff's claim of ownership and possession. The opinion does not establish new precedent beyond affirming existing principles regarding implied trusts and the admissibility of parol evidence in property disputes.

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KINSLEY et al. v. UPSHAW.

DEEN, Chief Judge.

Luevenia Kingsley and her son, William, bring this appeal from the grant of a writ of possession.

The evidence showed that Mrs. Kinsley conveyed her one-half interest in certain real property to her daughter, Mrs. Johnnie Mae Smith, the owner of the other half interest. The date of this conveyance is not shown in the record. Mrs. Smith conveyed the entire fee to her daughter, Audrey Upshaw, on August 29, 1979. On September 20, 1979, Ms. Upshaw notified her grandmother and her uncle that she had purchased the property and demanded that they vacate the premises. On October 23, 1979, she brought a dispossessory proceeding alleging that they were tenants at sufferance, that she had made a demand for the premises and that they refused to surrender possession. Mrs. Kinsley answered admitting that she was in possession of the property, but contended that she had reversed a life estate in the premises when she conveyed her interest to Mrs. Smith. William Smith also admitted possession and claimed that he remained on the premises as the guest of his mother.

The trial court found that Ms. Upshaw made out a prima facie case by showing that she was owner of the fee of the premises, that she had made a demand for the premises and that the defendants refused to surrender the premises. The court further found that the defendant's original entry on the premises was lawful, but their holding over after the conveyance of the property to the plaintiff was wrongful and created the relationship of landlord and tenants at sufferance and that parol evidence was not admissible to show consideration for or vary the terms of the warranty deed. Appellants contend that the trial court erred in holding that parol evidence was not admissible to show consideration for or vary the terms of the warranty deed, that the plaintiff was the landlord of the defendants and in granting the dispossessory warrant. Held:

While Mrs. Kinsley's explanation of the conveyance of her one-half undivided interest to Mrs. Smith is capable of being interpreted as an attempt to allege the creation of an express oral estate in contradiction of or to vary the terms of the warranty deed; nevertheless, it is likewise capable of being interpreted as an allegation of an implied or resulting trust. Particularly this is true in light of such holding as Chandler v. Ga. Chemical Works, 182 Ga. 419, 425 ( 185 S.E. 787) (1926), where the court stated: "`1. A deed absolute in form may be shown to have been made to secure a debt, where the maker remains in possession of land. Mercer v. Morgan, 136 Ga. 632 ( 71 S.E. 1075). 2. Actual possession is notice to the world of the right or title of the occupant. Mercer v. Morgan, supra; Bridger v. Exchange Bank, 126 Ga. 821 ( 56 S.E. 97, 8 L.R.A.) (N.S.) 463, 115 Am. St. R. 118); Austin v. Southern Home c. Assoc., 122 Ga. 439 ( 50 S.E. 382).'" Berry v. Williams, 141 Ga. 642 ( 81 S.E. 881) (1914).

Here we have a grandmother in possession and all subsequent holders have implied if not actual notice of her possession of the premises. Freeman v. Saxton, 240 Ga. 309, 312 ( 240 S.E.2d 708) (1977) states: "Although the appellant could not (in the absence of fraud, accident, or mistake) engraft an express oral trust on a deed absolute on its face, he may introduce parol evidence (including an oral agreement of the parties to the deed) which would impress the deed with an implied trust. See Harper v. Harper, 199 Ga. 26 ( 33 S.E.2d 154) (1945)." See Hemphill v. Hemphill, 176 Ga. 585, 590 ( 168 S.E. 878) (1932): "The fact that the plaintiff alleged that a certain agreement was had between her and the defendant did not render the petition fatally defective as seeking to enforce an express trust by parol. If from all the facts and circumstances an implied trust is otherwise established, it is not destroyed by the express verbal agreement which may have constituted a part of the transaction. The express agreement may be shown, not as fixing the interests to be ownd [sic] by the parties, but as rebutting the inference of a gift by the plaintiff. Jackson v. Jackson, supra; Romano v. Finley, 172 Ga. 366 (2) ( 157 S.E. 669)."

Also, in Harper v. Harper, supra, at 29, the court held: "`Accordingly, the fact that the plaintiff alleged that a certain oral agreement was made between him and Mrs. Guffin and Mrs. Kay, at the time of such conveyance to the latter, did not render the petition defective as seeking to enforce an express trust by parol. If from all the facts and circumstances an implied trust is otherwise established, it is not destroyed by the express verbal agreement which may have constituted a part of the transaction. The express agreement may be shown, not as fixing the interest to be owned by the parties, but as rebutting the inference of a gift by the plaintiff. [Cits.] Implied trusts are not within the statute of frauds, and the court may hear parol evidence showing the facts from which they are sought to be implied.' [Cits.] ...' A deed absolute in form may be shown by parol evidence to have been made in trust for the benefit of the grantor, where the maker remains in possession of the land.'"

Accordingly, we find that the trial court erred in failing to admit parol evidence of the agreement between the parties. While a municipal court has no jurisdiction to grant affirmative equitable relief because such power rests solely in the superior court, Code Ann. § 2-3301, it does have jurisdiction to hear an equitable defense. Arnold v. American Securities Co., 181 Ga. 354 ( 182 S.E. 3) (1935).

Judgment reversed. Birdsong and Sognier, JJ., concur.

SUBMITTED SEPTEMBER 8, 1980 — DECIDED NOVEMBER 20, 1980.