O.C.G.A. § 44-14-210 (2019)

Annotations

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION DEBT REDUCED TO JUDGMENT 1. BOND FOR TITLE 2. PURCHASE MONEY PARTIALLY PAID 3. DEED TO SECURE DEBT QUITCLAIM DEED FILING AND RECORDING LEVY AND SALE NOTICE General Consideration For case discussing history of O.C.G.A. § 44-14-210, see Coleman v. Maclean & Co., 101 Ga. 308, 28 S.E. 861 (1897); Maddox v. Arthur, 122 Ga. 671, 50 S.E. 668, 1905 Ga. LEXIS 298 (1905). For cases discussing the effect of the Act of 1894, see Johnson v. Equitable Sec. Co., 114 Ga. 604, 40 S.E. 787, 1902 Ga. LEXIS 736 (1902); Smith v. Fourth Nat’l Bank, 145 Ga. 741, 89 S.E. 762, 1916 Ga. LEXIS 464 (1916); Cooke v. Adams Bros. Co., 148 Ga. 289, 96 S.E. 499, 1918 Ga. LEXIS 307 (1918); Jordan Mercantile Co. v. Brooks, 149 Ga. 157, 99 S.E. 289, 1919 Ga. LEXIS 170 (1919). Constitutionality. - See Brown v. Rooks, 240 Ga. 674, 242 S.E.2d 128, 1978 Ga. LEXIS 800 (1978). Bank’s right to contract for power of sale and state regulation of banking do not constitute state action. - The statutory authorization of the right of a creditor bank to contract with debtors for a power of sale under a deed to secure debt does not, when combined with the state’s general regulation of the banking industry’s loan making procedures, convert the exercise of such power of sale into state action; therefore, any contention that the creditor’s exercise of its power of

sale under the deed to secure debt violates the debtors’ rights to procedural due process under U.S. Const., Amend. 14 is without merit. Ray v. Bank of Covington, 247 Ga. 758, 279 S.E.2d 425, 1981 Ga. LEXIS 847 (1981). Remedy distinct. - The remedies provided by O.C.G.A. §§ 44-14-210 and 44-14-280 are distinct and altogether independent of each other. Jackson v. Parks, 49 Ga. App. 29, 174 S.E. 203, 1934 Ga. App. LEXIS 247 (1934). O.C.G.A. § 44-14-210 applies only to a regular sale under final judgment. Bradley v. GMAC, 51 Ga. App. 609, 181 S.E. 188, 1935 Ga. App. LEXIS 418 (1935). “Judgment” defined. - When the holder of a deed to secure debt pursues the remedy provided in O.C.G.A. § 44-14-210, it is essential that the purchase-money or secured debt be reduced to judgment. The “judgment” here referred to means a judgment in personam against the maker of the debt. Hirsch v. Northwestern Mut. Life Ins. Co., 191 Ga. 524, 13 S.E.2d 165, 1941 Ga. LEXIS 321 (1941). It would not be correct to hold that in codifying O.C.G.A. § 44-14-210 the words therein, “and the purchase money or secured debt has been reduced to judgment,” mean other than a judgment on the debt, i.e., a personal judgment against the de-

fendant for the amount of the debt. Hirsch v. Northwestern Mut. Life Ins. Co., 191 Ga. 524, 13 S.E.2d 165, 1941 Ga. LEXIS 321 (1941). Not applicable to attachments. - O.C.G.A. § 44-14-210 applies to a levy and sale of the property under a final judgment, but not to an attachment and seizure of the property thereon. Johnson v. Walter J. Wood Stove Co., 6 Ga. App. 65, 64 S.E. 287, 1909 Ga. App. LEXIS 179 (1909). Not applicable to junior creditors and claimants. - Ordinarily junior creditors and claimants of property have an adequate remedy at law and are not entitled to the equitable relief provided in O.C.G.A. § 44-14-210. Rucker v. Tabor & Almand, 133 Ga. 720, 66 S.E. 917, 1910 Ga. LEXIS 32 (1910); Western Union Tel. Co. v. Brown & Randolph Co., 154 Ga. 229, 114 S.E. 36, 1922 Ga. LEXIS 339 (1922). A trustee in bankruptcy may take advantage of O.C.G.A. § 44-14-210, construed in connection with the powers given the trustee by bankruptcy law, as to a debtor’s property secured by deed. Bank of Manchester v. Birmingham Trust & Sav. Co., 156 Ga. 486, 119 S.E. 603, 1923 Ga. LEXIS 266 (1923). In bankruptcy proceedings the date of the security deed, not that of the judgment thereon, prevails, and, consequently, the plaintiff may bring the property involved to sale under the provisions of O.C.G.A. § 44-14-210 if the deed has been executed more than four months prior to the filing of the petition in bankruptcy. Harvard v. Davis, 145 Ga. 580, 89 S.E. 740, 1916 Ga. LEXIS 408 (1916). Compliance not prerequisite to jurisdiction. - Nothing in O.C.G.A. § 4414-210 indicates that compliance with it was intended to be made a prerequisite to the attaching of a court’s jurisdiction of a suit brought for the foreclosure of a security deed. First Nat’l Bank v. Charles Broadway Rouss, Inc., 61 F.2d 489, 1932 U.S. App. LEXIS 4339 (5th Cir. 1932), cert. denied, 287 U.S. 670, 53 S. Ct. 314, 77 L. Ed. 577, 1933 U.S. LEXIS 19 (1933). A city court has jurisdiction to give the remedy provided in O.C.G.A. § 44-14210, for the suit mentioned is not a case respecting title to land. Edenfield v. Bank

of Millen, 7 Ga. App. 645, 67 S.E. 896, 1910 Ga. App. LEXIS 443 (1910). The requirements of O.C.G.A. § 4414-210 must be complied with before a valid sale of property in which a plaintiff in attachment has reserved title. Rhodes & Son Furn. Co. v. Jenkins, 2 Ga. App. 475, 58 S.E. 897, 1907 Ga. App. LEXIS 430 (1907); Johnson v. Walter J. Wood Stove Co., 6 Ga. App. 65, 64 S.E. 287, 1909 Ga. App. LEXIS 179 (1909). Effect of noncompliance. - Strict compliance with the law was formerly required, on pain of the denial of the remedy; but since the passage of this act the creditor by a failure to comply strictly with its provisions is deprived only of that to which the creditor would have been entitled upon strict compliance therewith. In any case the creditor retains all the ordinary remedies that a title can give, and also such of those given by this Act to which the creditor remains entitled. Williamson v. Orient Ins. Co., 100 Ga. 791, 28 S.E. 914, 1897 Ga. LEXIS 144 (1897). Where a plaintiff seeking the remedy given by O.C.G.A. §§ 44-14-210 and 4414-211 does not fully comply with their provisions, the claimant to the property affected will prevail by reason of such noncompliance. Black v. Gate City Coffin Co., 115 Ga. 15, 41 S.E. 259, 1902 Ga. LEXIS 294 (1902); Sloan v. Loftis, 157 Ga. 93, 120 S.E. 781, 1923 Ga. LEXIS 370 (1923). Transfers by creditor. - The creditor may transfer the whole or any part of the debt secured and with it the real estate as security. Hunt v. New England Mtg. Sec. Co., 92 Ga. 720, 19 S.E. 27, 1893 Ga. LEXIS 238 (1893); Moss & Co. v. Stokely, 107 Ga. 233, 33 S.E. 61, 1899 Ga. LEXIS 37 (1899); Cumming v. McDade, 118 Ga. 612, 45 S.E. 479, 1903 Ga. LEXIS 633 (1903). Simple endorsement of the deed is not sufficient under O.C.G.A. § 44-14-210 to transfer the debt secured and with it the property as security. Sheppard v. Reese, 114 Ga. 411, 40 S.E. 282, 1901 Ga. LEXIS 723 (1901). A transfer of property among defendants affords no ground for illegality when the plaintiff, pursing the remedy provided by O.C.G.A. § 44-14-210, recov-

ers judgment against one or more of them. Stocking v. Moury, 129 Ga. 257, 58 S.E. 712, 1907 Ga. LEXIS 348 (1907). Administrator’s petition for marshalling no stay to creditor’s use of remedy. - See Royal v. EdinburghAmerican Land Mtg. Co., 143 Ga. 347, 85 S.E. 190, 1915 Ga. LEXIS 433 (1915).

sold, notwithstanding that no notice is given to the purchaser and that the latter holds a bond for title from the grantor, for the purchaser’s equitable interest under the bond must succumb to the legal interest acquired by the creditor. Scott v. Paisley, 158 Ga. 876, 124 S.E. 726, 1924 Ga. LEXIS 359 (1924), aff’d, 271 U.S. 632, 46 S. Ct. 591, 70 L. Ed. 1123, 1926 U.S. LEXIS 646 (1926).

Debt Reduced to Judgment

2. Purchase Money Partially Paid

1. Bond for Title

Rights of vendor when purchase money unpaid. - Upon the failure of the purchaser or transferee to pay the purchase-money the vendor may sue for the land, or the vendor may sue the purchaser upon the notes given for such purchase-money, under the provisions of O.C.G.A. § 44-14-210, or, as the land remains liable for the purchase-money the vendor may call upon such assignee to pay the balance of the purchase-money, render the land, or have it sold to satisfy the debt. McHan v. Stansell, 39 Ga. 197, 1869 Ga. LEXIS 202 (1869); Alston v. Wingfield, 53 Ga. 18, 1874 Ga. LEXIS 382 (1874); Couch v. Crane, 142 Ga. 22, 82 S.E. 459, 1914 Ga. LEXIS 252 (1914). When a party seeks a levy and sale of property under O.C.G.A. § 44-14-210, it is not selecting the exclusive method by which it can satisfy its judgment but is merely availing itself of a remedy that will provide payment toward the judgment balance; there is nothing in O.C.G.A. § 44-14-210 that precludes a judgment debtor from seeking further relief if its judgment is not satisfied after application of the sale proceeds. Southern Land & Cattle Co. v. Brock, 218 Ga. App. 297, 460 S.E.2d 843, 1995 Ga. App. LEXIS 689 (1995), cert. denied sub nom. Block v. Southern Land & Cattle Co., No. S95C1842, 1995 Ga. LEXIS 1187 (Ga. Nov. 17, 1995). The same remedies obtain in favor of a transferee of a note for the purchase price of property. Henry v. McAllister, 93 Ga. 667, 20 S.E. 66, 1894 Ga. LEXIS 382 (1894); Maddox v. Arthur, 122 Ga. 671, 50 S.E. 668, 1905 Ga. LEXIS 298 (1905). See also Ray v. Anderson, 119 Ga. 926, 47 S.E. 205, 1904 Ga. LEXIS 408 (1904); Guarantee Trust & Banking Co. v. American Nat’l

General Consideration (Cont’d)

Conditions for passage of title. - A grantor has a durable interest in the property covered by the bond only after redemption has been made by the grantor or by a judgment creditor desiring to subject the property: no title passes on sale unless the holder of the bond for title has legal title. Buchan v. Williamson, 131 Ga. 501, 62 S.E. 815, 1908 Ga. LEXIS 132 (1908). See also Ramey v. Denny, 133 Ga. 751, 66 S.E. 918, 1910 Ga. LEXIS 50 (1910). A grantor’s equitable interest under a bond for title is not leviable. Virginia-Carolina Chem. Co. v. Rylee, 139 Ga. 669, 78 S.E. 27, 1913 Ga. LEXIS 563 (1913). When interest becomes leviable. - Where a deed to secure an indebtedness has been made and bond for title given to the grantor to make a reconveyance upon payment of the debt, the grantor has not a leviable interest until redemption has been made either by the grantor or by a judgment creditor desiring to subject the property. Penn Mut. Life Ins. Co. v. Donalson, 177 Ga. 84, 169 S.E. 337, 1933 Ga. LEXIS 122 (1933). Where a trustee holds a bond for title for a person who has paid part of the purchase money, the latter does not have such an interest in the property as may be levied upon under O.C.G.A. § 44-14-210. Goldman v. Dent, 102 Ga. 9, 29 S.E. 138, 1897 Ga. LEXIS 436 (1897). Interest of purchaser holding bond. - Where a grantor conveys property which is security for a debt to a purchaser who agrees to pay the debt, the creditor of the grantor may nevertheless pursue a remedy under O.C.G.A. § 44-14-210 against the grantor and have the property

Bank, 15 Ga. App. 778, 84 S.E. 222, 1915 Ga. App. LEXIS 61 (1915). Nature and scope of remedy. - This remedy is in the nature of a proceeding in rem, and does not seek a personal judgment against the assignee. Its scope is to subject the land to the payment of the purchase money. Dunson v. Lewis, 156 Ga. 692, 119 S.E. 846, 1923 Ga. LEXIS 311 (1923). Transfer of installment notes. - O.C.G.A. § 44-14-210 does not authorize a vendor of land who has taken several notes for the unpaid purchase-money thereof to transfer them to different persons and to convey to each of them an undivided interest in the property in proportion to the part of the unpaid purchasemoney so transferred to the vendor, and thus empower such transferee to obtain judgment, file a deed, and sell such undivided interest in the manner pointed out by O.C.G.A. § 44-14-210, or to obtain a general judgment against the purchaser together with a special lien upon the undivided interest in the land so conveyed. Strickland v. Lowry Nat’l Bank, 140 Ga. 653, 79 S.E. 539, 1913 Ga. LEXIS 213 (1913). 3. Deed to Secure Debt Remedy not exclusive. - In general, see Dykes v. McVay, 67 Ga. 502, 1881 Ga. LEXIS 212 (1881); Hines v. Rutherford, 67 Ga. 606, 1881 Ga. LEXIS 239 (1881); Ashley v. Cook, 109 Ga. 653, 35 S.E. 89, 1900 Ga. LEXIS 279 (1900). Alternate remedies. - The remedies given by the law and by O.C.G.A. § 44-14210 are alternate, not concurrent. Couch v. Crane, 142 Ga. 22, 82 S.E. 459, 1914 Ga. LEXIS 252 (1914). A creditor may foreclose writing as mortgage if the creditor does not wish to utilize the remedy afforded by O.C.G.A. § 44-14-210. Macon Sav. Bank v. Jones Motor Co., 168 Ga. 805, 149 S.E. 217, 1929 Ga. LEXIS 250 (1929); Ryals v. Lindsay, 176 Ga. 7, 167 S.E. 284, 1932 Ga. LEXIS 369 (1932). Trover. - Procuring a judgment under O.C.G.A. § 44-14-210 does not impair the plaintiff’s right to trover provided there has been no execution of the judgment.

Mitchell v. Castlen, 5 Ga. App. 134, 62 S.E. 731, 1908 Ga. App. LEXIS 35 (1908). Election of remedies not required. - A creditor, who holds a promissory note secured by a deed, is not put to an election of remedies as to whether the creditor shall sue upon the note or exercise a power of sale contained in the deed, but the creditor may do either, or pursue both remedies concurrently until the debt is satisfied. Pico, Inc. v. Mickel, 138 Ga. App. 856, 230 S.E.2d 488, 1976 Ga. App. LEXIS 2346 (1976), aff’d, 238 Ga. 218, 232 S.E.2d 841, 1977 Ga. LEXIS 966 (1977); Trust Inv. & Dev. Co. v. First Ga. Bank, 238 Ga. 309, 232 S.E.2d 828, 1977 Ga. LEXIS 1010 (1977); Brown v. Georgia State Bank, 141 Ga. App. 570, 234 S.E.2d 151, 1977 Ga. App. LEXIS 1997 (1977); Brown v. Rooks, 240 Ga. 674, 242 S.E.2d 128, 1978 Ga. LEXIS 800 (1978). Sufficiency of security deed. - Where debtor gave a security deed to creditor which did not contain formal language but did convey property described in the deed, such deed was sufficient to invest creditor with such title that the creditor could execute a valid reconveyance to the debtor for the purpose of levy and sale. Woodward v. La Porte, 181 Ga. 731, 184 S.E. 280, 1936 Ga. LEXIS 417 (1936). Proof that the defendant had title when defendant made the security deed to the plaintiff is sufficient to make out a prima facie case against a third party claimant in favor of the plaintiff in fi. fa., notwithstanding the entry of levy stated the claimant was in possession at the time of the levy. Heaton v. Hayes, 188 Ga. 632, 4 S.E.2d 570, 1939 Ga. LEXIS 592 (1939). Quitclaim Deed Delivery of deed to debtor is not required under O.C.G.A. § 44-14-210. Denton Bros. v. Hannah, 12 Ga. App. 494, 77 S.E. 672, 1913 Ga. App. LEXIS 608 (1913); Terrell v. Gould, 168 Ga. 607, 148 S.E. 515, 1929 Ga. LEXIS 196 (1929); Alsabrook v. Prudential Ins. Co. of Am., 46 Ga. App. 400, 167 S.E. 735, 1933 Ga. App. LEXIS 74 (1933). Fact that the quitclaim deed was never delivered to the defendant did not render it void. Alsabrook v. Pruden-

Quitclaim Deed (Cont’d) tial Ins. Co. of Am., 46 Ga. App. 400, 167 S.E. 735, 1933 Ga. App. LEXIS 74 (1933). It is the duty of the vendor to convey the land by quitclaim deed to the purchaser for the purpose of levy and sale under O.C.G.A. § 44-14-210; when the vendor holds title as security for payment of purchase money; and upon a refusal by the vendor to make such a conveyance, a court of equity will compel the vendor to make such conveyance. Campbell v. Gormley, 184 Ga. 647, 192 S.E. 430, 1937 Ga. LEXIS 605 (1937). Proper person to execute deed. - Under O.C.G.A. § 44-14-210, the “holder of the legal title,” and not the original vendor, is the proper person to execute the quitclaim deed under the fi. fa. If a note only is transferred and no deed is made conveying the legal title to the land as security, then it is necessary, after the transferee has obtained judgment, that the vendor execute a quitclaim deed to the purchaser before the fi. fa. could have been levied, because in that event the vendor would have continued to be the holder of the legal title. Swinson v. Shurling, 162 Ga. 604, 134 S.E. 613, 1926 Ga. LEXIS 249 (1926). Where the holder of the legal title under a deed to secure debt, executed a power of attorney empowering the holder’s named attorney in fact to bring suit on papers comprising the deed and evidence of debt, to cause the property to be sold under levy after judgment, and to bid in the property in the name of such holder of the legal title, this authority included, as a “necessary and usual means” of selling the property, the right to execute the quitclaim reconveyance to the debtor, record of which in the clerk’s office is made by O.C.G.A. § 44-14-210, a prerequisite to a valid levy and sale of the property. Johnson v. Johnson, 184 Ga. 783, 193 S.E. 345, 1937 Ga. LEXIS 636 (1937). When reconveyance not required. - Where a warranty deed to secure a debt contains no defeasance clause, and no bond to reconvey is executed contemporaneously therewith - the grantee being given the power to sell the land at public outcry upon default in the payment of the

debt - it is not necessary that title be again placed in the grantor in order to bring the property to sale. Penn Mut. Life Ins. Co. v. Donalson, 177 Ga. 84, 169 S.E. 337, 1933 Ga. LEXIS 122 (1933). Reconveyance is not necessary before the issuance of attachment and seizure of the property thereunder. Bradley v. GMAC, 51 Ga. App. 609, 181 S.E. 188, 1935 Ga. App. LEXIS 418 (1935). Effect on sale. - Where land is conveyed by a deed to secure a debt, and the grantee or the grantee’s assignee obtains a judgment against the debtor and has the land levied on and sold under execution, without filing and having recorded a deed reconveying the land to the debtor, the levy and sale are void, but where a sale is made solely by virtue of a power of sale in the security deed, no reconveyance to the grantor is necessary. Williams Realty & Loan Co. v. Simmons, 188 Ga. 184, 3 S.E.2d 580, 1939 Ga. LEXIS 492 (1939). Nature of title passed. - Regardless of the time intervening between the date of the execution of a quitclaim deed and a levy and sale of the property therein conveyed, the grantee would never by virtue of such a deed acquire title to the land for any purpose other than to authorize its sale under the levy, nor would the grantee in the security deed thereby forfeit rights and title under the security deed for any purpose other than to enable the grantee to have a legal levy and sale of the premises involved. Minchew v. Juniata College, 188 Ga. 517, 4 S.E.2d 212, 1939 Ga. LEXIS 572 (1939). Where a grantee in a security deed reduces claim to judgment and executes to the defendant in fi. fa. a quitclaim deed for the purpose of levy and sale, which deed is duly recorded, and the property is sold by the sheriff, and the holder of the security deed becomes the purchaser at such sale, such reconveyance is in effect “in escrow” only for the purpose specified, and does not divest the grantee in the security deed of rights thereunder. Gooch v. Citizens & S. Nat’l Bank, 196 Ga. 322, 26 S.E.2d 727, 1943 Ga. LEXIS 357 (1943). Time of execution. - Where the quitclaim deed to the debtor was executed before the issuance of the execution, this did not render the quitclaim deed inopera-

tive. Alsabrook v. Prudential Ins. Co. of Am., 46 Ga. App. 400, 167 S.E. 735, 1933 Ga. App. LEXIS 74 (1933). The fact that the vendor had previously conveyed the land by warranty deed to one of the purchasers is not in compliance with the requirements of O.C.G.A. § 44-14-210. Holbrook v. Adams, 166 Ga. 871, 144 S.E. 657, 1928 Ga. LEXIS 423 (1928). Where there was no evidence to show that the plaintiff, the grantee in a security deed, had executed a quitclaim deed to the grantor in the security deed for the purpose of levy and sale, the trial court erred in directing a verdict finding the property subject to the plaintiff’s execution. Sparks v. Sparks, 193 Ga. 368, 18 S.E.2d 556, 1942 Ga. LEXIS 392 (1942). Accounting to other creditors. - Where a creditor grantee in a security deed obtains judgment, and sells the land without a deed of reconveyance as required by O.C.G.A. § 44-14-210, but goes into possession of the land and receives the rents, or has the use of the land personally, the creditor becomes chargeable with its proper rental, and must, in a proceeding with other judgment creditors, involving the distribution of the proceeds of other land covered by their liens, make an accounting for such rents by reducing the amount of the creditor’s claim accordingly. Williams Realty & Loan Co. v. Simmons, 188 Ga. 184, 3 S.E.2d 580, 1939 Ga. LEXIS 492 (1939). Filing and Recording Necessity for filing and recording deed. - Though a claim may be reduced to judgment and a quitclaim deed to the defendant in fi. fa. duly executed and signed, as required by O.C.G.A. § 44-14210, yet there can be no valid levy based upon such judgment unless such deed be duly filed and recorded. National Bank v. Danforth, 80 Ga. 55, 7 S.E. 546, 1887 Ga. LEXIS 322 (1887); Dedge v. Bennett, 138 Ga. 787, 76 S.E. 52, 1912 Ga. LEXIS 712 (1912); Coates v. Jones, 142 Ga. 237, 82 S.E. 649, 1914 Ga. LEXIS 660 (1914). See also Brunson v. Grant, 48 Ga. 394, 1873 Ga. LEXIS 70 (1873). The property is not subject to levy and sale on a judgment for the secured debt

until it has been reconveyed to the debtor, and until such reconveyance has been filed and recorded in the office of the clerk of the superior court. Callaway v. Life Ins. Co., 166 Ga. 818, 144 S.E. 381, 1928 Ga. LEXIS 413 (1928). When filing not required. - A vendor abandoning this remedy in favor of ejectment need not file the deed. Hines v. Rutherford, 67 Ga. 606, 1881 Ga. LEXIS 239 (1881). Place of recording. - When the defendant’s land lies partly in each of two counties and a levy is sought upon the entire tract, the deed must be recorded in each county. Cade v. Larned, 99 Ga. 588, 27 S.E. 166, 1896 Ga. LEXIS 452 (1896). Time of recording. - Where the vendor of land executed a quitclaim deed thereto for the purpose of levying the execution which issued upon the judgment against the vendee for the unpaid purchase-money, such deed, filed and recorded before the levy, is not invalid for such purpose, although not recorded until after the death of the vendor. Terrell v. Gould, 168 Ga. 607, 148 S.E. 515, 1929 Ga. LEXIS 196 (1929). When the first deed filed is defective another may be filed. Moss v. Lovett, 99 Ga. 321, 25 S.E. 649, 1896 Ga. LEXIS 394 (1896). Levy and Sale The words “may be levied” as used in O.C.G.A. § 44-14-210 are permissive, not mandatory. Hines v. Rutherford, 67 Ga. 606, 1881 Ga. LEXIS 239 (1881). Prerequisites to levy. - Before a sheriff can levy upon the land as the land of the defendant in fi. fa., the legal title thereto had to be put in the defendant in fi. fa. by executing a quitclaim deed in favor of the defendant and filing and having the same recorded in the clerk’s office of the county where the land is. Alsabrook v. Prudential Ins. Co. of Am., 46 Ga. App. 400, 167 S.E. 735, 1933 Ga. App. LEXIS 74 (1933). Rights of junior lienholders. - Creditors of a vendee, before a deed from vendor to vendee has been filed and recorded under the provisions of O.C.G.A. § 44-14-210, cannot themselves subject the land to levy and sale, their liens being

PROPERTY Notice

Levy and Sale (Cont’d) inferior to those of the vendor. Harvill v. Lowe, 47 Ga. 214, 1872 Ga. LEXIS 315 (1872). If there be a failure to enter on an execution made under O.C.G.A. § 44-14210 a credit which should be so entered, this will not of itself be sufficient grounds to warrant the grant of an injunction to arrest a levy and sale thereunder. Brown v. Wilson, 56 Ga. 534, 1876 Ga. LEXIS 355 (1876). Discretion of levying officer. - In the case of a levy upon land, made in pursuance of the mandate of the court directing the sale of specific property under a final judgment of foreclosure against the defendant, the levying officer has no discretion, but the officer’s duty is to levy on the specific property to pay the judgment; nor would the officer be authorized in the seizure of any person’s interest in the property except that of the defendant. Heaton v. Hayes, 188 Ga. 632, 4 S.E.2d 570, 1939 Ga. LEXIS 592 (1939). Effect of sheriff’s deed. - The title, legal and equitable, of the creditor becomes complete and indefeasible when the creditor obtains the sheriff’s deed conveying to the creditor as a purchaser at the official sale the property in dispute. Crawford v. Pritchard, 81 Ga. 14, 6 S.E. 689, 1888 Ga. LEXIS 52 (1888); Hirsch v. Northwestern Mut. Life Ins. Co., 191 Ga. 524, 13 S.E.2d 165, 1941 Ga. LEXIS 321 (1941). If the possession acquired be by virtue of a void sale by the sheriff, the creditor acquires no more right to the property than if the creditor had taken possession under the security deed on account of default in the payment of the debt. Hirsch v. Northwestern Mut. Life Ins. Co., 191 Ga. 524, 13 S.E.2d 165, 1941 Ga. LEXIS 321 (1941).

No notice required when parties all informed. Palmer v. Simpson, 69 Ga. 792, 1883 Ga. LEXIS 120 (1883). Persons not entitled to notice. - There is no principle entitling purchasers who purchased land which was subject to the security deed to notice of the exercise of this statutory power by the creditor, and that in failing to provide such notice O.C.G.A. § 44-14-210 does not deprive them of property without due process of law or deny them the equal protection of the laws. Scott v. Paisley, 271 U.S. 632, 46 S. Ct. 591, 70 L. Ed. 1123, 1926 U.S. LEXIS 646 (1926). Where the holder of a security deed assigns such deed and conveys the property therein described, the assignee takes all rights, title, and powers of the assignor in the security deed, and such assignor is precluded by a judgment of foreclosure of such deed from thereafter claiming a reversionary interest in the land embraced in the deed, although the assignor had no notice of the foreclosure proceedings. Owens v. Conyers, 189 Ga. 793, 7 S.E.2d 675, 1940 Ga. LEXIS 379 (1940). Failure to give notice. - When a defendant in execution is the vendee of land, and has only a bond for titles, and a portion of the purchase money has been paid, and the land is levied on and sold by judgments against the vendee, and no notice is given as required by O.C.G.A. § 44-14-210, nothing is sold but the interest of the defendant, and the vendor cannot claim any of the proceeds on the ground that the vendor’s purchase money is not all paid. The vendor’s remedy is by filing a deed and selling the land, or by action of ejectment on legal title. Estes v. Ivey, 53 Ga. 52, 1874 Ga. LEXIS 394 (1874).

RESEARCH REFERENCES Am. Jur. 2d. 30 Am. Jur. 2d, Executions, §§ 232, 244. 55 Am. Jur. 2d, Mortgages, § 572 et seq. 68 Am. Jur. 2d, Secured Transactions, § 572 et seq.

Am. Jur. Pleading and Practice Forms. 24A Am. Jur. Pleading and Practice Forms, Vendor and Purchaser, § 3.

C.J.S. 33 C.J.S., Executions, § 45. 59A C.J.S., Mortgages, § 690 et seq. ALR. Judgment as lien on judgment debtor’s equitable interest in real property, 30 A.L.R. 504. Rights or interests covered by quitclaim deed, 44 A.L.R. 1266; 162 A.L.R. 556. Recording laws as applied to power of attorney under which deed or mortgagee is executed, 114 A.L.R. 660.

Constitutionality of provision for service by publication of notice of proceeding by purchaser at tax sale to foreclose delinquent owner’s right of redemption, or of other proceeding perfect tax purchaser’s title, 145 A.L.R. 597. Interest of vendee under executory contract as subject to execution, judgment lien, or attachment, 1 A.L.R.2d 727.