BRANCH, Judge.
Under OCGA § 44-14-80, title to real property conveyed by a security deed that has not been cancelled or foreclosed upon after a certain period of time reverts to the grantor as a matter of law. The statute sets the default time period at seven years starting, depending on the circumstances, from either the maturity of the debt or from the date of the original conveyance. Id. The parties to the security deed are allowed, however, to extend the time to 20 years by so designating in the security deed. Id. The question in this case is whether the relevant security deed contains the necessary designation. The trial court held that an issue of fact remains as to the interpretation of the relevant security deed, and it therefore denied the appellant bank's motion to dismiss. We disagree and reverse.
The relevant facts are not in dispute. These facts show that Thomas McCook, Jr., obtained two loans and signed two deeds to secure debt concerning the same property. On or about July 1, 2002, he obtained a $1 million loan from his father, Thomas McCook, Sr.,
In 2012, Regions Bank sued McCook, Jr., who had defaulted on the Regions loan, and obtained a consent judgment for more than $750,000. In February 2013, appellant Vineville Capital Group, LLC purchased and was assigned the Regions security deed and the rights to the consent judgment obtained by Regions Bank against McCook, Jr.; thereafter Vineville initiated steps to foreclose on the premises.
On appeal of a trial court's ruling on a motion to dismiss, we conduct a de novo review. Penny v. McBride, 282 Ga.App. 590, 639 S.E.2d 561 (2006). "However, we construe the pleadings in the light most favorable to the plaintiff with any doubts resolved in the plaintiff's favor." Ga. Dept. of Community Health v. Data Inquiry, 313 Ga.App. 683, 722 S.E.2d 403 (2012) (citation and punctuation omitted). Our role is "to determine whether the allegations of the complaint, when construed in the light most favorable to the plaintiff, and with all doubts resolved in the plaintiff's favor, disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts." Penny, 282 Ga.App. at 590, 639 S.E.2d 561 (citation, punctuation and footnote omitted); see also Southwest Health & Wellness v. Work, 282 Ga.App. 619, 623(2), 639 S.E.2d 570 (2006) (on appeal of a motion for judgment on the pleadings, "the issue is whether the undisputed facts appearing from the pleadings entitle the movant to judgment as a matter of law") (citation and punctuation omitted).
OCGA § 44-14-80(a)(1) determines when title reverts to the grantor for security deeds with stated or fixed dates of maturity. Subsection (a)(2) determines when title reverts where "the maturity of the debt or debts or the maturity of the last installment thereof is not stated or fixed." OCGA § 44-14-80(a)(2). We agree with the parties that because McCook, Jr.'s original debt to his father was not "stated or fixed," subsection (a)(2) applies in this case.
Subsection (a)(2) provides that title to real property conveyed to secure a debt reverts to the grantor seven years after the date of the conveyance; it also provides that in order to obtain the 20-year reversionary period (which would also run from the date of the conveyance) the parties to the security deed must show "by affirmative statement contained in the record of conveyance" that they "intend to establish a perpetual or indefinite security interest in the real property":
OCGA § 44-14-80(a)(2).
McCook, Sr., contends that an "affirmative statement" sufficient to create a 20-year reversionary
The Code sections referred to in the third paragraph quoted above pertain to deeds to secure debt.
McCook, Sr.'s argument is that because the word "forever" found in paragraph 2 and the word "perpetual" found in OCGA § 44-14-80 can be seen as synonymous, the McCook security deed contains an "affirmative statement ... intend[ed] to establish a perpetual or indefinite security interest in the real property conveyed to secure a debt or debts" as required by OCGA § 44-14-80(a)(2), and that therefore, under the McCook security deed, title to the premises will only revert to McCook, Jr., 20 years from the date of the original conveyance, i.e., July 2, 2022. We disagree for the following reasons.
1. In its first two enumerations of error, Vineville contends the trial court erred by holding that parol evidence could be used to determine whether the McCook security deed contains the necessary OCGA § 44-14-80 "affirmative statement" and by failing to find as a matter of law that the McCook security deed, in fact, does not contain the affirmative statement required by the statute.
(a) The trial court denied Vineville's motion to dismiss in part on the grounds that "there is a genuine dispute as to whether the parties intended the habendum clause as an affirmative statement within the meaning of OCGA § 44-14-80(a)" and that McCook, Sr., could possibly introduce evidence sufficient to warrant a declaration that the McCook security deed was still valid and in force. We agree with Vineville that to the extent the trial court held that parol evidence could show that the parties to the McCook security deed intended to invoke the 20-year reversionary period, it erred.
The plain language of OCGA § 44-14-80(a)(2) places the burden on parties who
It is true that Georgia law provides that if a court cannot glean the intention of the maker from the contents of the deed, "it may hear parol evidence to prove the maker's intention." OCGA § 44-6-21; see also Second Refuge Church of Our Lord Jesus Christ v. Lollar, 282 Ga. 721, 725, 653 S.E.2d 462 (2007) (extrinsic evidence admitted only where deed's text "is so ambiguous that its meaning cannot be determined through application of the ordinary rules of textual construction") (footnote omitted). But it is well established that "the terms of a specific statute govern over those of a more general statute." Newton v. Lawson, 313 Ga.App. 29, 33(2), 720 S.E.2d 353 (2011) (punctuation and footnote omitted). Here, OCGA § 44-14-80 is the more specific statute in that it specifies how to invoke the 20-year reversionary period; it therefore governs over OCGA § 44-6-21. For these reasons, we hold that to the extent the trial court held that parol evidence could be used to determine whether the parties to the McCook security deed intended to invoke the 20-year reversionary period, it erred.
(b) Second, we agree with Vineville and hold as a matter of law that the McCook security deed does not contain an affirmative statement showing that the parties "intend[ed] to establish a perpetual or indefinite security interest in the real property" as required by OCGA § 44-14-80(a)(2).
"The construction of a deed presents a question of law which this Court reviews de novo." Lollar, 282 Ga. at 724(2), 653 S.E.2d 462 (footnote omitted). "The cardinal rule of construction of deeds, as well as other contracts, is to ascertain the intention of the parties. If that intention be clear from the deed and circumstances of the transaction and contravenes no rule of law, it should be enforced." Keith v. Chastain, 157 Ga. 1, 6, 121 S.E. 233 (1923) (citation and punctuation omitted). See also Greene v. Greene, 311 Ga.App. 132, 714 S.E.2d 650 (2011) (where the language is unambiguous, a court must enforce the deed as written). "[T]he whole instrument is to be construed together so as to give effect, if possible, to the entire deed and the construction which will uphold a deed in whole and in every part is to be preferred." Shoaf v. Bland, 208 Ga. 709, 711(2), 69 S.E.2d 258 (1952) (citation and punctuation omitted). And "[n]o prescribed form is essential to the validity of a deed to lands or personalty." OCGA § 44-5-33. Nevertheless, "words of art, or words used in a particular trade or business will be construed, generally, to be used in reference to this peculiar meaning." OCGA § 13-2-2(2).
The phrase "forever, in fee simple" is found in what is commonly known as the "to have and to hold" or habendum clause
The word "forever" in the habendum clause indicates the unlimited duration of the estate rather than the nature of the security interest. See First Nat. Bank of Snyder v. Evans, 169 S.W.2d 754, 756-57 (Tex.Civ.App. 1943) (where the word "forever" in the habendum clause was X'ed out and replaced with the words "as set out above," the duration of the estate was controlled by a duration-limiting provision found earlier in the deed). Compare OCGA § 44-6-81 ("An estate for life may be either for the life of the tenant or for the life of some other person or persons."); OCGA § 44-6-100 ("An estate for years is one which is limited in its duration to a period which is fixed or which may be made fixed and certain."). Indeed, "[a]n absolute or fee simple estate is one in which the owner is entitled to the entire property with unconditional power of disposition during his life and which descends to his heirs and legal representatives upon his death intestate." OCGA § 44-6-20. See also 31 C.J.S. Estates § 12 ("A fee simple estate is one by which a tenant holds lands, tenements, or hereditaments to himself and his heirs, forever."); Latham Homes Sanitation v. CSX Transp., 245 Ga.App. 573, 575, 538 S.E.2d 107 (2000) (the words "forever, in fee simple," along with other standard phrases, such as "successors and assigns," "will warrant and defend the title thereof against the claim of all persons," typically indicate a fee simple title) (citations and punctuation omitted). In short, the word "forever" and the phrase "forever, in fee simple" are words of art, and although these words may be no longer necessary to convey title in fee simple,
In addition, paragraph 3 of the McCook security deed provides that the conveyance is intended to operate as a security deed, and it identifies the debt being secured and indicates that the deed is intended to operate as provided in certain Code sections that govern deeds to secure debt. Nothing in this paragraph of the McCook security deed suggests that the parties to that deed intended to invoke the 20-year reversionary period. And our review of the remainder of the security deed shows that no other paragraph of the deed does so, either.
Because the word "forever" as used in the habendum clause of the McCook security deed refers to the duration of the estate being granted rather than the nature of the security interest and there being no other indication that the parties intended to invoke the 20-year reversionary period for deeds to secure debt, we conclude that the seven-year default period applies in this case. The undisputed facts of the case show that title to the McCook security deed was conveyed on July 1, 2002, and recorded one day later; the deed therefore reverted to McCook, Jr., on July 2, 2009, at the latest, seven years after the conveyance of the McCook security deed. All of McCook, Sr.'s claims rely upon the continuing validity of his security interest in the premises. Without a secured interest in the premises, McCook, Sr.'s claims therefore must fail as a matter of law. The trial court therefore erred by denying Vineville's motion to dismiss because the allegations of McCook, Sr.'s complaint, even when construed in the light most favorable to McCook, Sr., disclose with certainty that he would not be entitled to relief under any state of provable facts.
2. Vineville's remaining enumerations of error regarding the propriety of the trial court's interlocutory injunction have been
Judgment reversed.
BARNES, P.J., and BOGGS, J., concur.