Knight v. Hedden , 112 Ga. App. 847 ( 1965 )

Hall, Judge.

This case is controlled by Kollen v. High Point Forest, Inc., 104 Ga. App. 713 (123 SE2d 10), cert. denied 104 Ga. App. 903, and McKee v. Cartledge, 79 Ga. App. 629 (54 SE2d 665). These decisions followed the principle of Moxley v. Adams, 190 Ga. 164, 165 (8 SE2d 525), and other cases and held that when it is contemplated by the parties that certain duties and obligations contained in an executory contract for the conveyance of land are to be performed after the delivery of possession of the property, and the warranty deed thereto, these duties and obligations are not merged in the deed and the acceptance of delivery of possession. “Where there are stipulations in the preliminary contract or contracts of which the conveyance is not a perfonnance, the question whether such stipulations are merged in the deed depends upon the intent of the parties. . . The evidence of such intention may exist in or out of the deed . . . where the antecedent contract contains provisions imposing obligations upon the vendor other than those relating to title or possession, and so far collateral thereto as to indicate that their omission from the deed was without any deliberate intent to preclude their survival of that instrument, such collateral provisions will be held to survive the deed.” See Kollen v. High Point Forest, Inc., supra, p. 716.

“The rule as to merger of previous agreements ... is subject to exceptions, and the intent of the parties is controlling, the question being one of construction, to be gathered from a consideration of the entire contents of the instruments, or from the instruments and surrounding circumstances. If the deed contains no evidence of intention, the question is open to other evidence to determine such intention, but where merger of a prior contract into a deed is denied, the burden of proof rests on the party so denying to show that merger was not intended.” 28 CJS 845, Deeds, § 91 (c).

In the present case the allegation that it was always the intention and purpose of the parties that the special provisions of the sale contract, as to the guaranty of a dry basement and as to the guaranty of the fireplace to work, would not merge in the warranty deed but would survive its execution is supported by the form and provisions of the contract itself. The inclusion of the guarantees as to the basement and the fireplace in separate stipulations rather than including them in stipulation 7 would authorize the inference and support the conclusion that the parties intended the seller’s obligations in stipulations 8 and 9 to survive the deed rather than to be completed prior to closing as were the items in stipulation 7. The petition alleges that after the execution of the deed, with respect to the wet basement, the defendant installed some drainage tile and some concrete. This alleged fact gives some support to the allegation that the parties intended the seller’s obligation with respect to the basement to survive the deed. McKee v. Cartledge, 79 Ga. App. 629, 632, supra.

There is a difference in the facts of the Kollen case and the facts of this case, but this difference does not make a different result necessary or proper in this case. There the guarantee of workmanship, materials and a dry basement was limited to a period of one year. In the present case no specific period for the guarantees is stated; they would be effective, therefore, for a reasonable period. “When a contract fixes no time for performance, it is to be construed as allowing a reasonable time for that purpose; and what is a reasonable time is a matter of fact to be determined by a jury under all of the circumstances of the case.” Bearden Mercantile Co. v. Madison Oil Co., 128 Ga. 695, 702 (58 SE 200); Bryant v. Atlantic C. L. R. Co., 119 Ga. 607, 609 (46 SE 829); Moxley v. Adams, 190 Ga. 164, 165, supra; Morgan v. Colt Co., 34 Ga. App. 630 (130 SE 600).

In Postell v. Hearn, 104 Ga. App. 765, 767 (123 SE2d 13), this court held that contract provisions similar to those in the Kollen case and this case, relied on as a defense to an action on a promissory note, were merged in and extinguished by the deed executed pursuant to the contract. The reasons for that decision were (a) that the pleading did not allege, as the pleadings in the McKee and Kollen cases, suprá, did, that the parties intended that certain obligations of the written sale contract were to survive the deed executed pursuant to the contract; and (b) that the provision of the contract that “such papers as may be legally necessary to carry out the terms of this contract shall be executed and delivered by such parties at the time sale is consummated,” showed the parties’ intention to consummate all agreements in the contract at once. The quoted contract provision in the Postell case appears in the contract in the present case; but the petition in the present case contains the allegation, absent in the Postell case -(and also absent in Willingham v. Anderson, 90 Ga. App. 799, 802 (84 SE2d 471)), that the parties intended that the contract provisions survive the deed. Thus, the Kollen case rather than the Postell case is applicable here. When the parties intend survival rather than extinction of contract provisions such as these following execution of the deed, new papers are not legally necessary to effect the survival of such contract provisions. Kollen v. High Point Forest, Inc., 104 Ga. App. 713, supra.

The allegations of the present petition do not show as a matter of law that the contract provisions sued upon were- merged in and extinguished by the deed.

The trial court erred in sustaining the general and special demurrers to the petition.

Judgment reversed.

Nichols, P. J., Bell, P. J., Jordan, Pannell and Deen, JJ., concur. Felton, C. J., Frankum and Eberhardt, JJ., dissent.