O.C.G.A. § 44-14-323 (2019)

Annotations

JUDICIAL DECISIONS Application of legislative intent. - Under O.C.G.A. § 44-14-323, the legislature specifically provided that all liens, which are not regulated and fixed as to rank shall rank according to date, the oldest having priority; Georgia’s appellate courts have embraced the “first in time, first in right” approach in prioritizing judgments, holding that, money in court, on a rule for its distribution, must be applied, as far as it goes, to the oldest lien that has attached to it, if there be nothing to affect the validity of the lien. Vesta Holdings I, LLC v. Tax Comm’r, 259 Ga. App. 717, 578 S.E.2d 293, 2003 Ga. App. LEXIS 251 (2003). A purchase money mortgage is accorded special priority over any lien against the property arising through or against the purchaser. Register v. Reese, 37 B.R. 708, 1983 Bankr. LEXIS 4771 (Bankr. N.D. Ga. 1983). Subordination clause. - Trial court’s finding with respect to the priority of a

bank’s security deed and the landowners’ security deed was erroneous because the subordination clause in the landowners’ real estate sales agreement merged into their security deed and was extinguished; thus, the trial court was required to determine the priority of the deeds pursuant to O.C.G.A. § 44-14-323, and, as such, the landowners’ deed was inferior to the bank’s deed because the landowners’ deed expressly stated as such and was recorded after the bank’s deed. Tallahassee State Bank v. Macon, 317 Ga. App. 128, 730 S.E.2d 646, 2012 Ga. App. LEXIS 677 (2012), cert. denied, No. S12C1983, 2013 Ga. LEXIS 278 (Ga. Mar. 18, 2013). Foreclosed security deed may have priority. - Where there is a clause in the lease making the rights of the lessee “subject to” a subsequent security deed, the foreclosed security deed has priority. Trust Co. Bank v. Atlanta Speedshop Dragway, Inc., 208 Ga. App. 867, 432

S.E.2d 608, 1993 Ga. App. LEXIS 735 (1993). Lender paying realty encumbrance receives priority over later creditor. - Where one advances money to pay off an encumbrance on realty either at the instance of the owner of the property or the holder of the encumbrance, either upon the understanding or under an implied understanding that the advance is to be secured by the senior lien on the property, should new security not be a first lien on the property, the holder of the security, if not chargeable with culpable or inexcusable neglect, will be subrogated to the rights of the prior encumbrance under the security, unless the superior or equal equity of others would be prejudiced thereby. Knowledge of the existence of an intervening encumbrance will not alone prevent the person advancing the money to pay off the senior encumbrance from claiming the right of subrogation where the exercise of such right will not substantially prejudice the rights of the intervening encumbrancer. Under the foregoing circumstances, equity will set aside a cancella-

tion of such security and revive the same for the benefit of the party who paid it off. Davis v. Johnson, 241 Ga. 436, 246 S.E.2d 297, 1978 Ga. LEXIS 1014 (1978). A divorce decree did not create a lien superior to the claims of judgment creditors because the decree did not award a lump support payment or create a lien in favor of the children. Dee v. Sweet, 224 Ga. App. 285, 480 S.E.2d 316, 1997 Ga. App. LEXIS 44 (1997). Lien found not to “impair” exemption to which bankruptcy debtor entitled. See Orsburn v. Diners Club, Inc., 35 B.R. 217, 1983 Bankr. LEXIS 5047 (Bankr. N.D. Ga. 1983). Rights of lessee. - Under the general principle contained in O.C.G.A. § 44-14323, the rights of a lessee are superior to those of a subsequent lienholder. Raiford v. DOT, 206 Ga. App. 114, 424 S.E.2d 789, 1992 Ga. App. LEXIS 1402 (1992), cert. denied, No. S93C0320, 1993 Ga. LEXIS 24 (Ga. Jan. 8, 1993), cert. denied, No. S93C0317, 1993 Ga. LEXIS 25 (Ga. Jan. 8, 1993).

RESEARCH REFERENCES Am. Jur. 2d. 51 Am. Jur. 2d, Liens, §§ 68-70, 75. C.J.S. 53 C.J.S., Liens, § 14. ALR. Priority as between liens for public improvements, 5 A.L.R. 1301; 99 A.L.R. 1478. Character of service contemplated by statutes giving a lien or preference, in event of insolvency, to servants, employees, laborers, etc., 54 A.L.R. 567. Doctrine of inverse order of alienation as affected by release of part of property

covered by mortgage or other lien, 110 A.L.R. 65; 131 A.L.R.4th 108. State’s prerogative right of preference at common law, 167 A.L.R. 640. Priority as between lien for repairs and the like, and right of seller under conditional sales contract, 36 A.L.R.2d 198. Priority as between artisan’s lien and chattel mortgage, 36 A.L.R.2d 229. Right of vendee under executory land contract to lien for amount paid on purchase price as against subsequent creditors of or purchasers from vendor, 82 A.L.R.3d 1040.