Supreme Court of Georgia, 1976

Tomkus v. Parker

Supreme Court of Georgia · Decided March 11, 1976 · Undercofler

224 S.E.2d 353; 236 Ga. 478; 1976 Ga. LEXIS 907 (South Eastern Reporter, Second Series)

Cases that cite this one

13 later published cases cite this decision.

Banks v. Echols (Ga. Ct. App. 2010)
Dickens v. Calhoun First National Bank (Ga. Ct. App. 1990)
Commercial Bank v. Readd (Ga. 1978)
King v. State (Ga. Ct. App. 1985)
Burns v. Home Federal Savings & Loan Ass'n (In re Burns) (United States Bankruptcy Court, M.D. Georgia 1982)
Metro Atlanta Task Force for the Homeless, Inc. v. Ichthus Community Trust (Ga. 2015)
Manders v. King (Ga. 2008)
United States v. Fidelity Capital Corporation, a Georgia Corporation, Commonwealth Mortgage Corporation of America, Intervenor-Appellee (11th Cir. 1991)
CHEROKEE INSURANCE CO. v. Gravitt (Ga. Ct. App. 1988)
Foster v. Economy Developers, Inc. (Ga. Ct. App. 1978)
Mickel v. Pickett (Ga. 1978)
Cochran v. Mother's Small Loan Co. (Ga. Ct. App. 1977)
Schanck v. Town of Hephzibah (Ga. 1976)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion

Undercofler, Presiding Justice.

The petition in this case shows:

On June 19,1973, Francis S. Czajkowski gave a note and security deed on certain property to the National Bank & Trust Company of Columbus. On July 20, 1974, Czajkowski conveyed the property by quitclaim deed to appellant. There was no assumption of the outstanding indebtedness in the quitclaim deed. Czajkowski died and the note became in default. Patricia R. Petrone is the administratrix of the Czajkowski estate and is one of the appellees. The National Bank & Trust Company assigned the note and security deed to Joseph D. Parker, Jr., one of the appellees who has entered foreclosure proceedings. Appellant prayed that the foreclosure proceedings be enjoined and the administratrix be required to pay the indebtedness out of the assets of the Czajkowski estate. The trial court denied the relief. This appeal followed. Held:

1. "While a security deed passes legal title, it leaves an equitable title vested in the grantor which may be sold or otherwise disposed of in the same manner as a full legal title. A purchaser or grantee from the original borrower acquires the property subject to the security deed where he takes with actual or constructive notice, together with the right of redemption... Unless the purchaser expressly assumes the secured indebtedness, it remains only as a charge against the land and a personal liability of the original borrower.” Pindar, Georgia Real Estate Law (1971), p. 805, § 21-49. Appellant acquired the property here subject to the security deed. Although she is not personally liable on the note, it is a lien upon the land and subject to foreclosure. She can not compel the administratrix to pay the note and thereby gain clear title to the property absent an agreement to that effect.

2. Code § 85-710 relates to mergers of estates and is no basis for equitable relief to compel the appellee-administratrix to pay the outstanding indebtedness here.

3. The foreclosure sale has taken place and questions as to whether it should have been enjoined are *479 moot.

Argued January 14, 1976 Decided March 11, 1976. Starlin, Powell & Hipps, Joseph W. Powell, II, for appellant. Willis & Murrah, Edward P. Murrah, Jr., Martin, Kilpatrick & Davidson, Marcus B. Calhoun, Jr., for appellees.

Judgment affirmed.

All the Justices concur.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.