Perkins v. Rhodes , 192 Ga. 331 ( 1941 )

A rehearing was granted in this case, to determine whether an apparently erroneous statement of fact had caused us to arrive at an erroneous conclusion. The author of the opinion had recited that the last security deed had been canceled, "reinvesting title in Perkins, where it reposed at his death." The motion for rehearing called attention that this conveyance was not canceled until after his death, and made the contention that the cancellation was upon payment of the debt by the widow who not only claimed the property as an heir but also claimed the right to have it set apart as a year's support. It is contended that such right is superior to the right of Mrs. Rhodes or her heirs. We do not review our ruling as to the character of conveyance made by Perkins to Mrs. Rhodes, being satisfied with what was originally stated in reference to it, and nothing being presented in the later briefs to change these views; but we do re-examine the question as to the effect of this latter transaction. Careful re-examination of the record does not in any way disclose that the payment of Perkins' indebtedness to the grantee in the last security deed was made by the widow, albeit such may be the fact, since the date of cancellation of the deed is shown to be on a date after Perkins' death. Viewing the case in reference to Mrs. Perkins' claim to the property as for year's support, we reach the same conclusion as originally announced. Such a claim is of course subordinate to a valid outstanding transfer of title as by a security deed. See Lunsford v.Kersey, 191 Ga. 738 (13 S.E.2d 803); Smalley v.Bassford, 191 Ga. 642 (13 S.E.2d 662), and cit. The payment to the Realty Savings Trust having been voluntary, so far as the record here discloses, and there being no claim as by a transferee of the security deed (it appearing to have been canceled), and the claim made not being founded on subrogation, it follows that title, upon the cancellation of the deed, stood in the heirs at law or the assigns of Perkins; and the deed to Mrs. Rhodes not being satisfied, the property came under the terms of its conveyance, and the right of Mrs. Perkins to a year's support was subordinate to those holding under it.

The judgment is adhered to. All the Justices concur.