ARGUED APRIL 30, 1975.
DECIDED SEPTEMBER 4, 1975. REHEARING DENIED SEPTEMBER 24, 1975.
Declaratory judgment. Muscogee Superior Court. Before Judge Smith.
Henson, Stapleton Cheves, G. David Stapleton, III, Kenneth Henson, for appellant.
Hirsch, Beil Partain, Jacob Beil, for appellee.
This is the third case involving these parties which has reached the appellate courts of this state. The prior decisions are reported at 229 Ga. 855 ( 194 S.E.2d 913) and 231 Ga. 692 ( 203 S.E.2d 517).
In Fourth Nat. Bank v. Grant, 231 Ga. 692, supra, the Supreme Court held that, by operation of Code § 67-1301, Mrs. Grant had obtained, upon the execution of a deed to secure debt to her by Mr. Anthony in 1962, fee simple title to a tract of land, subject only to the grantor's right (created by a letter incorporated in the agreement) to reconveyance upon payment of the debt during his lifetime, which contingency never arose. This holding is the law of this case.
The trial judge properly ruled in favor of Mrs. Grant in the present declaratory judgment action (brought by her after the grantor's death), thereby holding that she is entitled to that portion of the proceeds of a condemnation for highway purposes by Muscogee County (which condemnation proceedings were commenced after she had acquired fee simple title as grantee by the execution of the deed to secure debt) which applied to the property included in the security deed.
It is immaterial that the grantee, Mrs. Grant, did not assert before the special master any claim to the condemnation proceeds and that such proceeds were distributed to the grantor under the special master's award (which was superseded by a compromise settlement effected after the grantor's death). At that time she was the record owner of the land. Her claim to the proceeds of her land was tacitly recognized by the appellant bank (administrator of the grantor's estate) by serving her as a party at interest to the special master proceedings, and expressly, subsequent to the grantor's death, by stipulating with her that it would hold the condemnation proceeds until the parties' rights were determined in a declaratory judgment action filed by the appellant in 1971 (which was finally adjudicated against it and in the appellee's favor by Fourth Nat. Bank v. Grant, 231 Ga. 692, supra).
Judgment affirmed. Deen, P. J., and Evans, J., concur.