dissenting.
Although I concur fully in the majority’s conclusion that the trial court erred in granting summary judgment to U. S. Development Corporation, I disagree with the majority’s conclusion that Mr. Harris and Ms. Barks are entitled to summary judgment.
1. First, even assuming that the majority is correct that the trial court exceeded its contempt authority in ordering that Ms. Harris could sell the Tybee Island property and that she could do so by private sale, Mr. Harris was a party to that contempt action and failed to object to these procedures or to appeal the contempt order. He therefore is barred by res judicata from raising any objections to the contempt order in this action even if the contempt order can be considered void.1 Accordingly, he is barred from raising any defense to U. S. Development’s prayer for specific performance of its contract with Ms. Harris that is based upon the validity of the Henry County contempt order.
2. Further, there are two factual disputes which, if a jury resolved in U. S. Development’s favor, would bar Ms. Barks from raising any objections to Ms. Harris’s sale of the Tybee property to U. S. Development.
(a) The first of these disputes concerns res judicata. “The doctrine of res judicata prevents the re-litigation of all claims which have already been adjudicated, or which could have been adjudicated, between identical parties or their privies in identical causes of action.”2 Generally, it has been held that “[a] husband and wife are not privies for purpose of res judicata.”3 Moreover, although one spouse may act as the agent or representative of the other spouse in litigation, thus placing the spouses in privity,4 the record does not establish without factual dispute that Mr. Harris, who transferred the property to Ms. Barks shortly before the third contempt action, acted in such capacity for Ms. Barks in the third contempt action in Henry County. Thus, to the extent that the trial court may have granted summary judgment to U. S. Development against Ms. Barks based on principles of res judicata, it erred. On the other hand, the evidence does raise a factual dispute regarding this issue, and if Mr. *664Harris did effectively represent Ms. Barks’s interests in the Tybee property in the contempt action, Ms. Barks would be barred by res judicata from raising objections to the Henry County judgment in this action.
Decided July 15, 1998 Reconsideration denied July 31,1998. Lane & Jarriel, Walter J. Lane, Jr., for appellants.(b) Moreover, although I agree with Mr. Harris’s and Ms. Barks’s contention that the trial court erred to the extent it may have granted summary judgment to U. S. Development based on a finding that Mr. Harris’s transfer of the Tybee property to Ms. Barks was fraudulent, I also conclude that the existence of a factual dispute as to that issue precludes the grant of summary judgment to Ms. Barks.
For purposes of this dissent, it is unnecessary to detail the numerous facts that indicate that the transfer from Mr. Harris to Ms. Barks may have been fraudulent. It suffices to say that the evidence, including evidence of the timing of the transfer and of Mr. Harris’s financial condition, creates a factual dispute regarding whether the transfer was fraudulent under either subsections (2) or (3) of OCGA § 18-2-22. Moreover, if a jury were to find that the transfer was fraudulent, then the transfer would be void,5 thus precluding Ms. Barks from contesting any aspect of the sale from Ms. Harris to U. S. Development.
3. Further, it has been held that if a grantor of a security interest pays the debt but fails to have the security deed canceled, a purchaser without notice of the payment of the debt may defeat the rights of the grantor of the security deed.6 This rule was developed in cases where the debtor had paid the debt before the sale occurred. Here, in stark contrast, Mr. Harris and Ms. Barks did not pay the debt until over two years after the Henry County court approved the sale, over one year after Ms. Harris contracted with U. S. Development for the sale of the property, and over six months after this lawsuit began. For these reasons, Ms. Barks’s contention that her payment of the debt defeats U. S. Development’s interest in the property is meritless.
4. For the foregoing reasons, I cannot agree with the majority’s holding that the trial court erred in failing to grant summary judgment to Ms. Barks and Mr. Harris. I therefore dissent.
McCorkle, Pedigo & Johnson, David H. Johnson, John G. Hunter, for appellee.Marshall v. Marshall, 257 Ga. 494, 495-496 (360 SE2d 572) (1987); Bennett v. State, 268 Ga. 849, 850 (494 SE2d 330) (1998).
Waldroup v. Greene County Hosp. Authority, 265 Ga. 864, 865 (463 SE2d 5) (1995).
Aycock v. Calk, 228 Ga. App. 172, 175 (491 SE2d 383) (1997).
Waldroup, 265 Ga. at 866; Olson v. Harveston, 158 Ga. App. 65, 68-69 (276 SE2d 54) (1981); Culverhouse v. Atlanta Assn. for Convalescent Aged Persons, 127 Ga. App. 574, 575 (194 SE2d 299) (1972).
Barclay v. First Nat. Bank of Polk County, 265 Ga. 744 (462 SE2d 374) (1995); 37 CJS, Fraudulent Conveyances, § 52 (1997).
Burgess v. Simmons, 207 Ga. 291, 297-298 (61 SE2d 410) (1950); Tower Financial Svcs. v. Smith, 204 Ga. App. 910, 917 (423 SE2d 257) (1992).