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 Supеrior Court of Muscogee County. The trial court referred the case to a special master as providеd in Code Ann. § 37-1413. After making separate findings of fact and law, the special master determined that the appellеes held title to the disputed property. He concluded that appellant’s deed to the property should be canceled, appellant’s tenants dispossessed, and the rents and profits from the property remittеd 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 appеllant to file any exceptions of law or exceptions of fact *106 to the special master’s repоrt. 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 speсial master decides all questions of law and fact in the case. See
Barrett v. Simmons,
The appellant and the appellees’ immеdiate 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 рrior 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 аppellant’s deed showed on its face that it was for a consideration in excess of $100. The special master also determined that *107 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 thе consideration or value of the interest or property conveyed (exclusively of the value of any liеn or encumbrance 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 sеction, the clerk’s certificate attached or entered upon the recorded deed may be relied upon by subsequent purchasers or lenders that the proper tax has been paid. In the present case, however, no such certificate by the clerk appears on the deed. Instead, the special master found the deed shows on its face both that a transfer tax should have been paid and that none was paid.
Under these circumstances, we find the cases interpreting the predecessors to Code Ann. §§ 29-101 and 29-408 analogous and controlling on this issue.
Citizens Bank of Moultrie v. Taylor,
The rule we find applicable here is that a deed not properly attested or acknowledged, as required by statute, is ineligible for recording and, even if recorded, does not constitute constructive notice. 8 EGL, Deeds, § 118, p. 566. Applying an analogous rule under Chapter 92-8, Tax on Transfer of Real Property, we agree with the special master’s conclusion of law that Higdon’s warranty deed was not entitled to be recorded as it showеd on its face that it was for a consideration in excess of $100, arid also showed on its face that no tax had bеen paid to entitle it to be recorded. Therefore, the deed could not serve as constructive notice to the appellees’ predecessor in title. Since there was no actual notice of the аppellant’s warranty deed, as between appellant and the appellees’ predecessor in title, the latter had priority of title to the disputed property. For this reason, we affirm the trial court’s judgment in which the аppellant’s deed was ordered canceled as a cloud upon the superior title of the appellees.
Judgment affirmed.
Notes
Cf. Title 10 of the Ga. Code, Auditors, which sets out in detail the procedure for making exceptions of law and exceptions of fact to auditors’ reports.