Higdon v. Gates
| Decision Date | 26 October 1976 |
| Docket Number | No. 31458,31458 |
| Citation | 231 S.E.2d 345,238 Ga. 105 |
| Parties | Dannie H. HIGDON v. C. E. GATES et al. |
| Court | Georgia Supreme Court |
Louis H. Mitchell, Columbus, for appellant.
Forest L. Champion, Jr., Columbus, for appellees.
This is an in rem proceeding 'to establish title (to land) and to remove (a cloud) upon title' brought under Code Ann. §§ 37-1411 through 37-1423 in the Superior Court of Muscogee County. The trial court referred the case to a special master as provided in Code Ann. § 37-1413. After making separate findings of fact and law, the special master determined that the appellees held title to the disputed property. He concluded that appellant's deen to the property should be cancelled, appellant's tenants dispossessed, and the rents and profits from the property remitted to appellees. The final decree of the trial court adopted the special master's report and this appeal is from that judgment.
Appellees move to dismiss this appeal for failure of appellant to file any exceptions of law or exceptions of fact to the special master's report. Appellees argue that if no exceptions are made the findings of the special master become conclusive upon the parties when adopted by the trial court. We disagree and deny the motion to dismiss.
Code Ann. § 37-1416 grants to any party the right to demand a jury trial on any question of facts. Unless a timely demand for a jury trial is filed, the special master decides all questions of law and fact in the case. See Barrett v. Simmons, 235 Ga. 600, 221 S.E.2d 25 (1975) and Thornton v. Reb Properties, Inc., 237 Ga. 59, 226 S.E.2d 741 (1976). However, there is no transcript of the evidence considered by the special master. Therefore, we cannot review the special master's findings of fact to determine if there is any evidence to support them. Under these circumstances, we must accept as correct the master's findings of fact, and the parties are bound by them on appeal. But, since the statute makes no provision for filing exceptions to the special master's report, 1 the failure to file exceptions is not cause for dismissal of the appeal. We will pass on the merits of the case, but will be limited to a review of the master's conclusions of law based upon his findings of fact. Cf. Lawhorn v. Steele, 232 Ga. 857, 209 S.E.2d 191 (1974), where a transcript of the evidence was available for review on appeal.
The appellant and the appellees' immediate predecessor in title both claim title to the same property conveyed to each of them by a common grantor. Appellant was given a warranty deed and the appellees' predecessor received a security deed. The special master found that appellant's deed was recorded prior to the deed of the appellees' predecessor. However, the special master found that the appellees' predecessor took title under its security deed without actual or constructive notice of appellant's prior recorded warranty deed.
The special master concluded that appellant's deed showed on its face that it was for a consideration in excess of $100. The special master also determined that appellant's deed showed on its face that no transfer tax had been paid for it to be recorded. Code Ann. § 92-801 imposes a transfer tax on each deed by which any realty is conveyed 'when the consideration or value of the interest or property conveyed (exclusively of the value of any lien or incumbrance existing prior to the sale and not removed thereby) exceeds $100.'
Code Ann. § 92-805 provides that no deed of the kind described in § 92-801 shall be filed for record or recorded unless the transfer tax has been paid. Under this section, the clerk's certificate attached or entered upon the...
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Trauner v. First Tenn. Bank Nat'l Ass'n (In re Simpson)
...by statute, is ineligible for recording." U S. Bank, N.A. v. Gordon, 289 Ga. 12, 15, 709 S.E.2d 258 (2011) (quoting Higdon v. Gates, 238 Ga. 105, 107, 231 S.E.2d 345 (1976) ). The Court is persuaded based on the plain language of O.C.G.A. § 45–17–8.1(a) & (b) and case law interpreting the v......
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Gordon v. Wells Fargo Bank (In re Krieg)
...is ineligible for recording.'" U.S. Bank Nat'l Ass'n v. Gordon, 289 Ga. at 15, 709 S.E.2d 258 (2011)(quoting Higdon v. Gates, 238 Ga. 105, 107, 231 S.E.2d 345 (1976)). Conversely, "[t]he recording of a properly attested security deed serves as constructive notice to all subsequent bona fide......
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Martin v. Patton
...v. Camp, 244 Ga. 7, 12(4), 257 S.E.2d 517 (1979); Brown v. Wilson, 240 Ga. 856, 857(1), 242 S.E.2d 603 (1978); Higdon v. Gates, 238 Ga. 105, 106, 231 S.E.2d 345 (1976); Thornton v. Reb Properties, 237 Ga. 59, 226 S.E.2d 741 (1976). If the verdict is in error, like a special master's award, ......
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In Re Bertha Joanna Hagler
...interested party is involved in a bankruptcy proceeding.”); In re Hedrick, 524 F.3d 1175, 1182 (11th Cir.2008). Citing Higdon v. Gates, 238 Ga. 105, 231 S.E.2d 345 (1976) Coniff v. Hunnicutt, 157 Ga. 823, 836, 122 S.E. 694 (1924), Plaintiff contends that under Georgia law a security deed th......
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Real Property - T. Daniel Brannan and William J. Sheppard
...46. 267 Ga. at 300 n.l, 477 S.E.2d at 567 n.l. The court specifically distinguished the facts in this case from those in Higdon v. Gates, 238 Ga. 105, 231 S.E.2d 345 (1976). 267 Ga. at 300, 477 S.E.2d at 567. In Higdon the deed contained a defect obvious on its face. Therefore, the deed, ev......