Ouseley v. Foss

On Motion for Rehearing.

Appellant/cross-appellee asserts that this court has overlooked the doctrine of merger by deed. We find Jordan v. Flynt, 240 Ga. 359 (240 SE2d 858), and the cases cited by appellant/cross-appellee in its motion to be distinguishable from this case.

Decided September 15, 1988 Rehearing denied October 13, 1988 James I. Parker, for appellant. Larry J. Barkley, for appellee.

Moreover, examination of the sales contact in toto reveals that under the provisions of paragraph 12 thereof, it was the parties manifest intent that the provisions of the sale contract would continue in full force and effect “at the time the sale is consummated,” as it provided for the execution and delivery of such papers as “may be legally necessary to carry out the terms of this Contract” at such time. (Emphasis supplied.) That the parties so intended is further evidenced by the affidavits executed by sellers upon purchaser’s demand, regarding the status of liens and leases on said property, on the same date as the deed was executed. In interpreting this contract provision, this court has applied the cardinal rule of construction by ascertaining the “intention of the parties.” OCGA § 13-2-3. The principle of merger by deed has no application in those situations, as here, where the parties have reserved by the terms of their sales contract, that the provisions thereof are to survive deed execution. Jordan, supra at 362 (1); P.B.R. Enterprises v. Perren, 243 Ga. 280, 282 (253 SE2d 765). Accordingly, we are satisfied that the merger clause of the sales contract has survived the subsequent execution of the deed.

Appellant/cross-appellee’s other assertions of error also are without merit. Accordingly, we adhere to our opinion.

Motion for rehearing denied.