Paulk v. Dorminey

Atkinson, J. 1. A deed absolute in form will ordinarily transfer the title of the grantor to tlie land;' but if the grantor remains in possession, it may be shown by parol that the deed was made to secure a debt. Where such a deed is made to secure a debt, the legal title will vest in the grantee, and the equitable title, or right to have the property reconveyed on payment of the debt, will remain in the grantor. Civil Code (1910), § 3258; Copelin v. Williams, 152 Ga. 692 (2) (111 S. E. 186). If the grantee subsequently dies, the grantor would have a similar right against the administrator upon' his estate. 2. If, while holding legal title to the land, as indicated in the preceding note, the administrator of the estate sells the land as the property of the estate under an order of the court of ordinary duly granted, the estate would be liable to account to the grantor for the balance of the proceeds of the sale, after discharging the indebtedness of the grantor to the estate. 3. If, while a portion of the debt remains unpaid, the administrator undertakes to sell the property at administrator’s sale, the grantor might in an appropriate proceeding assert his equitable interest in the land; but if he fails to do so, and (being an heir at law of the intestate) is informed by the administrator that he will proceed to sell the land as the property of the estate, and charge the entire purchase-price against the distributive share of the grantor in the intestate’s estate, „ and after such statement by the administrator the grantor becomes a successful bidder at the administrator’s sale at a price which exceeds the balance due on the secured debt to the intestate, the fact that the grantor bids off the property under such circumstances and receives a deed from the administrator would not, as against the other heirs at law, estop the grantor from asserting his equity, by a suit against the administrator, to have the deed to the intestate declared to be a security deed, and to have an accounting, and have his distributive share in the estate charged with only so much of the price bid as should be necessary to pay the amount found due the estate in the accounting. (a) This ease does not involve any attack on the validity of the administrator’s deed, but is essentially a suit for an accounting on the basis of an .alleged equity of the plaintiff against the estate of the plaintiff’s deceased father, and affects the other heirs of the deceased only in so far as it shall be determined whether or not the amount that should be found due by the estate on the accounting shall be charged against the plaintiff’s distributive share in the estate. On [786] its facts tlie case differs from and is not controlled by the rulings in the following cases, which were relied on to show estoppel: Hill v. Williams, 33 Ga. 39; Hanks v. Phillips, 39 Ga. 550; Yahoola River &c. Mining Co. v. Irby, 40 Ga. 479; Long v. Ballard, 59 Ga. 355; Raley v. Ross, 59 Ga. 862; Rosser v. Cheney, 61 Ga. 468; Cruger v. Tucker, 69 Ga. 557; Mock v. Stuckey, 96 Ga. 187 (23 S. E. 307); Harris v. Amoskeag Lumber Co., 101 Ga. 641 (29 S. E. 302); Jenkins v. Southern Railway Co., 109 Ga. 35 (34 S. E. 355). No. 3244. January 19, 1923. 4. Applying the principles above stated, the petition set forth a cause of action, and the court erred in dismissing the same on general demurrer. Judgment reversed. All the Justices concur. 17.' D. Buie, for plaintiff. J. A. Alexander and A. J. & J. G. McDonald, for defendant.