Opinion
44025.
SUBMITTED OCTOBER 8, 1968.
DECIDED MARCH 3, 1969.
Complaint. Forsyth Superior Court. Before Judge Pope.
Bert N. Garstin, for appellant.
Howard T. Overby, Palmour Palmour, J. E. Palmour, Jr., Boling Neville, Leon Boling, for appellees.
The trial judge found that the interest of the plaintiff under his warranty deed to secure debt lay entirely against a one-ninth distributive share of the proceeds from the sale of the dower land by the defendant administrator. Hence, under these circumstances it was not error to further provide that the plaintiff's interest in the proceeds might be divested by payment of the debt secured by the deed.
SUBMITTED OCTOBER 8, 1968 — DECIDED MARCH 3, 1969.
Clyde Pendley brought his complaint in Forsyth Superior Court against Joe E. Brooks, administrator of the estate of J. Erastus Vaughan, seeking an accounting of the proceeds for the sale of certain real property by the defendant in a sum equal to one-ninth of the net distributive amount thereof. The complaint alleged that J. E. Vaughan died intestate December 25, 1906, survived by his widow Hassie Vaughan to whom certain described lands were set aside as dower; that E. F. Vaughan, a son and heir at law of J. E. Vaughan, held an undivided one-ninth reversionary interest in the dower land set aside to his mother; that on January 17, 1914, during the dower estate E. F. Vaughan conveyed to his brother, V. K. Vaughan, his undivided one-ninth reversionary interest in the dower lands by a recorded warranty deed; that thereafter on May 17, 1923, V. K. Vaughan conveyed the one-ninth reversionary interest to the Bank of Cumming as security for a debt or note dated the same date. This deed to secure debt was duly recorded. The complaint further alleged that the deed and note were transferred and assigned for value from the Bank of Cumming to J. C. Powell on May 22, 1941, and thence to several named successors culminating in a transfer from V. B. Vaughan to Clyde Pendley, the plaintiff, on September 13, 1955; that the debt for which the deed to secure debt was given has not been paid; that the dower estate terminated upon the death of Hassie Vaughan, whereupon the defendant administrator took possession of the lands and sold them pursuant to an order of the Forsyth Court of Ordinary for the purpose of payment of debts and distribution among the heirs.
The defendant administrator filed his defense in which he alleged there were conflicting claims being made upon him for the one-ninth interest of E. F. Vaughan; that a claim had been made upon him by the heirs of V. K. Vaughan under and by virtue of the warranty deed from E. F. Vaughan to V. K. Vaughan dated January 17, 1914; that the defendant is a stakeholder in the proceeding and desired to pay over the one-ninth interest to the parties legally entitled thereto.
The heirs of V. K. Vaughan intervened as defendants and answered as follows: that they denied that the sum claimed by the plaintiff had not been paid and averred that it had been fully paid; that if the plaintiff had any right at all under the security deed he had only the right to collect the indebtedness secured thereby; that if the plaintiff is entitled to any sum of money it is only the principal borrowed upon the disputed land, plus interest, which the intervenors are willing to pay into court. The answer also sought the one-ninth distributive share of V. K. Vaughan in the estate of J. Erastus Vaughan and that the security deed be canceled of record.
The plaintiff amended his petition by adding as an exhibit the copy of the security deed and also added a second count by which he sought the recovery of a principal sum of $490.32 together with interest at 8 percent from November 1, 1924, on a promissory note dated July 18, 1924, and attached as an exhibit to the petition. Upon an agreement of parties as to the statement of facts set out in the pleadings the trial judge, sitting without a jury, entered the following order. "[1] It is ordered and adjudged that judgment be and the same is hereby entered in favor of the plaintiff and against the defendant and the intervenors for a sum equal to a one-ninth (1/9) distributive share of the proceeds of the sale of said dower land by the defendant administrator, said interest arising out of a warranty deed to secure debt dated May 17, 1923, recorded in Deed Book 7, page 139, Forsyth County Deeds Records. [2] It is further provided that plaintiff's said one-ninth (1/9) interest may be divested upon payment to plaintiff by defendant of the principal sum of $200 with interest thereon at seven (7) percent per annum from May 17, 1923, with costs. Upon receipt of said payment, plaintiff is ordered to mark the said warranty deed to secure debt canceled and to mark a certain note dated July 18, 1924, in the principal sum of $490.32 from V. K. Vaughan and W. H. Powell to Bank of Cumming paid in full and to deliver the two documents to the defendant." The plaintiff appeals from this judgment and in his enumeration of errors complains of that portion of the judgment which we have designated as [2].
In his order the trial judge found that the interest of the plaintiff under his warranty deed to secure debt lay entirely against a one-ninth distributive share of the proceeds from the sale of the dower land by the defendant administrator. This was predicated on the plaintiff's pleadings which sought one ninth of the net distributive amount of the proceeds and was a holding that any right to the land under the deed to secure debt had been cut off by the administrator's sale and that the sole interest covered by the security deed was in the proceeds. Consequently, in the second part of the order the trial judge permitted the plaintiff's interest in the proceeds to be divested upon payment in full of the amount secured by the deed to secure debt, plus interest.
Error is assigned on the second part of the order by the plaintiff who contends that the defendants could not redeem the property and that, in any case, he could be divested of his interest only by payment of the note for $490.32 with interest.
In determining the validity of the second portion of this order, we point out that the first order, being unappealed from, became the law of the case and binding on this court in determining the rights of the parties. In this posture, since the interest of the grantee to the security deed was in the proceeds, it must follow that any remaining interest of the grantor (and thus the interest of the heirs of the grantor, the intervenors) would be in the proceeds. The grantor in a deed to secure debt retains the right of possession and the right of redemption by payment of the debt, and, consequently, an equitable interest in the property which may be assigned or subjected to payment of his debts. Citizens Bank of Moultrie v. Taylor, 155 Ga. 416 (1) ( 117 S.E. 247), and Groves v. Williams, 69 Ga. 614.
While the right of redemption normally goes with the land (see Lufburrow v. Newton, 34 Ga. App. 325 ( 129 S.E. 439), Royal v. Edinburgh-American Land c. Co., 143 Ga. 347 ( 85 S.E. 190), and Baldwin v. Atlanta Joint Stock Land Bank, 189 Ga. 607 ( 7 S.E.2d 178)), in view of the peculiar circumstances of this case and the ruling of the trial judge that the plaintiff's security deed entitled him to share in the proceeds of the administrator's sale, the defendants would have the right to divest the plaintiff of his interest in the proceeds by payment of the debt in full. Since there was evidence showing that the original amount of the debt was $200, the trial judge did not err in providing that the plaintiff's one-ninth interest in the proceeds might be divested upon payment in the sum of $200 plus interest.
As regards the argument that the note for $490.32 must be paid, there is no conclusive showing that it was the note secured by the loan deed.
Judgment affirmed. Bell, P. J., and Hall, J., concur.