Opinion
38084.
DECIDED FEBRUARY 16, 1960.
Complaint. Fulton Civil Court. Before Judge Camp. November 6, 1959.
G. Eugene Ivey, for plaintiff in error.
Charles H. Edwards, contra.
The trial court erred in sustaining the defendant's plea of the statute of frauds and dismissing the petition.
DECIDED FEBRUARY 16, 1960.
Manget Foundation, Inc., filed a petition against Mildred Womack White and Henry S. Manship in the Civil Court of Fulton County, which alleged substantially as follows: That on December 26, 1957, the plaintiff sold improved property located at 819 Quillian Street, DeKalb County, Georgia, to Henry Manship; that the plaintiff took a second purchase-money lien on the property covered by the usual promissory note in the sum of $4,640; that this second purchase-money lien note was duly recorded on February 15, 1958, in the records of DeKalb County; that on November 25, 1958, Manship transferred the property to the defendant White by a warranty deed, which was duly recorded on November 26, 1958. The essential portion of the warranty deed reads as follows: "The consideration for this deed is the assumption by the grantee herein of the unpaid principal balance of $6,948.96 due on loan #57687 and secured by loan deed from the grantor herein to Standard Federal Savings Loan Association of Atlanta; and the assumption of the unpaid principal balance and interest due on debt secured by second loan deed from the grantor herein to the Manget Foundation, Inc."
The defendant White accepted the warranty deed and entered into possession of the property, renting it and collecting rent thereon from November 25, 1958, to May, 1959; that after taking possession the defendant White paid nothing on the first loan which was due the Standard Federal Savings Loan Association and paid nothing to the plaintiff on the second loan; that in March, 1959, the Standard Federal Savings Loan Association advertised, foreclosed, and sold the property at public outcry on April 7, 1959; that the action of the loan company was unknown to the plaintiff but was known to the defendants, no notice having been given by the defendants to the plaintiff regarding the advertising and the sale. The plaintiff asked judgment against the defendants in the sum of $4,640 plus interest from the date of the original loan deed. To this action the defendant White filed a plea of the statute of frauds alleging that the defendant White did not sign any agreement, obligation or assumption to pay the second loan. The defendant's plea of the statute of frauds came on for hearing before Judge Thomas L. Camp of the Civil Court of Fulton County on November 6, 1959. He entered the following order in regard to the plea: "The within plea came on regularly to be heard on this date, and counsel (Mr. Hambrick) for the defendant, Mildred Womack White, appeared and argued and made oral motion in open court to dismiss the plaintiff's petition as to this defendant.
"It appearing to the court that this is a suit on a note pursuant to a loan deed and the exhibits attached thereto show on their face that this defendant, Mildred Womack White, did not sign the loan deed or the note, It is considered ordered and adjudged that said motion be and the same is granted and the petition is ordered dismissed as to the defendant Mildred Womack White.
"This 6th day of November, 1959."
It is to the judgment sustaining the plea based on the statute of frauds and dismissing the petition that the case is here for review.
It is elementary that a deed must be based on consideration; that the wording in the deed must be sufficient to create a covenant between the parties thereto; that the deed must have been delivered to the grantee and accepted, as written, and that the grantee must have entered into possession thereof. See in this respect Renfroe v. Alden, 164 Ga. 77 ( 137 S.E. 831), Phillips v. Blackwell, 164 Ga. 856 (3) ( 139 S.E. 547), Ottauquechee Savings Bank v. Elliott, 172 Ga. 656 (1) (158 S.E. 316), Anderson v. Higgenbotham, 174 Ga. 565 (1) ( 163 S.E. 477), Adams v. Lee County Bank c. Co., 178 Ga. 154 ( 172 S.E. 224), and Phelps v. House, 67 Ga. App. 872 (2) ( 21 S.E.2d 522).
A recital in a conveyance that the deed is made subject to a specified loan against the property is not an agreement to assume and pay the encumbrance. There must be words importing a promise to pay the debt, in order to render the grantee personally liable. Alsobrook v. Taylor, 181 Ga. 10 (6) ( 181 S.E. 182). The result is not different because the conveyance, after reciting that it is made subject to the loan, adds the words, "which is a part of the above consideration." National Bondholders Corp. v. Parris, 190 Ga. 513 (1) ( 9 S.E.2d 741).
On the other hand, where the language of the security deed is to the effect that "as a part of the above consideration the party of the second part hereto agrees to assume payment" etc., and the grantee of the deed accepts delivery of the instrument and enters upon the land, this "does not bring his promise within the operation of the statute of frauds." Brice v. National Bondholders Corp., 187 Ga. 511 (3) ( 1 S.E.2d 426).
The language of this instrument lies between the two cases cited above and is to the effect that "the consideration for this deed is the assumption by the grantee herein of the unpaid principal balance," etc. In our opinion the word "assumption," coupled with acceptance of the deed and entry upon the land, constitutes an agreement to pay that which is recited to be a part of the consideration. "Assumption" is defined in Black's Law Dictionary as "The act or agreement of assuming or taking upon one's self; the undertaking or adoption of a debt or obligation primarily resting upon another, as to where the purchaser of real estate `assumes' a mortgage resting upon it, in which case he adopts the mortgage debt as his own and becomes personally liable for its payment." Thus, the words "the assumption by the grantee herein of the principal balance" may be read "the agreement by the grantee herein to pay the principal balance."
It follows that the trial court erred in sustaining the plea of the statute of frauds, the only issue before this court. Whether such an action may in this State be maintained at law or whether it is within the sole province of a court of equity is not presently before us. In that regard see Brice v. National Bondholders Corp., 187 Ga. 511, supra, and Morgan v. Argard, 148 Ga. 123 ( 95 S.E. 986).
Judgment reversed. Townsend and Carlisle, JJ., concur.