Newman v. Newman

• Decision Date: 23 April 1975
• Docket Number: No. 29740,29740
• Citation: 216 S.E.2d 79,234 Ga. 297
• Parties: W. A. NEWMAN v. A. E. NEWMAN et al.
• Court: Georgia Supreme Court

Page 79

216 S.E.2d 79

234 Ga. 297

W. A. NEWMAN v. A. E. NEWMAN et al.

No. 29740.

Supreme Court of Georgia.

April 23, 1975.

Rehearing Denied May 6, 1975.

Jay, Garden & Sherrell, Fitzgerald, David E. Morgan, Jr., Abbeville, John Edward Smith, III, Fitzgerald, for appellant.

McDonald, Mills & Chasteen, Ben B. Mills, Jr., Fitzgerald, for appellees.

Syllabus Opinion by the Court

PER CURIAM.

R. E. Newman and others brought an action against George Theron Newman and others for equitable partition by sale of described land, and for accounting. It was alleged that the parties derived their title as heirs of their father, W. L. Newman.

This appeal is from the grant of the plaintiffs' motion to strike the second defense in the answer of W. A. Newman, and from the denial of his motion to dismiss the plaintiffs' complaint. Certificate for immediate review was signed by the trial judge.

In this second defense W. A. Newman alleged that he held a security deed, dated March 28, 1947, from W. L. Newman conveying the land sought to be partitioned, and asserted that the land could not be partitioned until this indebtedness had been paid.

The plaintiffs filed a motion to strike this defense on the ground that the security deed was more than 20 years old, no written renewal of the debt had been filed, the security deed was barred by the statute of limitation (Ga.L.1941, p. 487; 1953, Nov. Sess., pp. 313, 314; Code Ann. § 67-1308), and the property had reverted to the heirs of W. L. Newman.

W. A. Newman responded to this motion by alleging that he was on active duty in the military service of the United States from June, 1953, until January, 1973, and that the statute of limitation did not run against him during this time under the provisions of the Soldiers' and Sailors' Civil Relief Act (Oct. 17, 1940, c. 888, § 205, 54 Stat. 1181; Oct. 6, 1942, c. 581, § 5, 56 Stat. 770; 50 U.S.C.A., Appendix, § 525).

The trial judge entered an order making findings of fact (apparently based on the depositions of W. A. Newman and Theron Newman) that W. A. Newman was not hindered by his military service from attending to various business matters and had ample time and opportunity to enforce the provisions of his deed to secure debt. The judge determined as a matter of law that title to the property described in the security deed had reverted to the heirs of W. L. Newman, and that the statute of limitation (Code Ann. § 67-1308) had not been tolled by reason of W. A. Newman's military service, since he had failed to show that his opportunity to file a written renewal to avoid the reverter provisions of § 67-1308 was materially affected by reason of his military service. The motion to dismiss the complaint was denied.

The trial judge erred in basing his ruling on a determination of whether the appellant's opportunity to avoid the reverter provisions of Code Ann. § 67-1308 was materially affected by reason of his military service.

In Wolf v. C.I.R., 3 Cir., 264 F.2d 82, at page 87 (1959), it was held: 'Section 205 (50 U.S.C.A., Appendix, § 525) of the Soldiers' and Sailors' Civil Relief Act, as amended, provides for a tolling of statutes of limitations 'by or against any person in military service' during his or her period of military duty . . . Unlike Section 201 (50 U.S.C.A., Appendix, § 521), which has been held to grant to the courts discretionary authority to stay proceedings where military service affects the conduct thereof, Section 205 is mandatory in nature and has been so interpreted.' See also Ray v. Porter, 6 Cir., 464 F.2d 452, 455 (1972).

Since 50 U.S.C.A., Appendix, § 525 is mandatory, the question for determination is whether that Section is applicable to the reverter provision of Code Ann. § 67-1308. The pertinent portion of the Soldiers' and Sailors' Civil Relief Act, § 525, is as follows: 'The period of military service shall not be included in computing any period now or hereafter to be limited by any law, regulation, or order for the bringing of any action or proceeding in any court, board, bureau, commission, department, or other agency of government by or against any person in military service . . .'

Section 1 of Ga.L.1941, p. 487, as amended (Code Ann. § 67-1308) provides in part: 'Title to real property conveyed to secure a debt or debts shall revert to the grantor, his heirs, personal representatives, successors, and assigns at the expiration of 20 years from the maturity of such debt or debts, . . .' This statute provides for the automatic reverter of title to land described in a security deed to the grantor or his heirs after expiration of the twenty-year period. The quoted provision of the Soldiers' and Sailors' Civil Relief Act (50 U.S.C.A., Appendix, § 525) does not in any way impede such an automatic reverter of title. The...