O.C.G.A. § 44-14-33 (2019)

Annotations

Law reviews. For annual survey on real property, see 65 Mercer L. Rev. 233 (2013). For article, “Eleventh Circuit Survey: January 1, 2013 - December 31, 2013: Casenote: The Decline and Fall of Constructive Notice,” see 65 Mercer L. Rev. 1203 (2014).

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION PARTICULAR TRANSACTIONS General Consideration Necessity for official witness. - Notwithstanding the employment of the word “must,” under O.C.G.A. § 44-14-33 it has never been held that a mortgage was totally void for want of an official witness; it is surely safe to say that a duly executed reservation of title should not, for such a reason, be held wholly invalid. The contract containing it cannot be lawfully recorded unless the same be attested by “or proved before” one of the designated officials; nor can the holder get the protection which would result from the constructive notice to others given by the record; but surely the holder ought to be protected in rights as against one who takes with actual notice of the fact that the title has been reserved. Hill v. Ludden & Bates S. Music House, 113 Ga. 320, 38 S.E. 752, 1901 Ga. LEXIS 242 (1901). Attestation. - Attestation is not the act of subscribing one’s name as a witness to the fact that a given paper was executed, but is instead the act of subscribing one’s name as a witness to the fact that one witnessed the execution of a paper. Thus, the language of the affidavit did not make it clear that the closing attorney attested to execution of the Security Deed by the debtor or the debtor’s ex-husband. Gordon v. Wells Fargo Bank, N.A., 504 B.R. 668, 2014 Bankr. LEXIS 183 (Bankr. N.D. Ga. 2014). Effect of unattested mortgage. - An unattested mortgage is good as between the parties thereto, or as between the maker and a transferee. The requirement relative to attestation, as prescribed by

O.C.G.A. § 44-14-33 pertains to the prerequisite necessary to its record, and has application only so far as the intervening rights of third persons without notice are concerned. Futch v. Taylor, 22 Ga. App. 441, 96 S.E. 183, 1918 Ga. App. LEXIS 380 (1918). See also, Jacobs v. State, 4 Ga. App. 509, 61 S.E. 924, 1908 Ga. App. LEXIS 457 (1908); Donalson v. Thomason, 137 Ga. 848, 74 S.E. 762, 1912 Ga. LEXIS 169 (1912); Bank of Ringgold v. West Publishing Co., 61 Ga. App. 426, 6 S.E.2d 598, 1939 Ga. App. LEXIS 310 (1939); Central Bank & Trust Co. v. Creede, 103 Ga. App. 203, 118 S.E.2d 844, 1961 Ga. App. LEXIS 909 (1961). Security deed to real property that lacked the signature of a witness did not provide constructive notice of the lender’s lien against the property since O.C.G.A. § 44-14-33 provided for constructive notice only if the deed was duly recorded, and a duly recorded security deed was one that was attested by the requisite number of witnesses. Gordon v. Wells Fargo Bank, N.A. (In re Codrington), 430 B.R. 287, 2009 Bankr. LEXIS 4158 (Bankr. N.D. Ga. 2009), aff’d, 716 F.3d 1344, 2013 U.S. App. LEXIS 10276 (11th Cir. 2013). Chapter 7 trustee put the material fact of the form of a security deed at the time of recordation in dispute, thus precluding summary judgment in favor of the lender on the trustee’s complaint to avoid the lender’s security deed under the trustee’s strong arm powers by submitting a certified copy of the deed on file with a state court that did not include a notary stamp or seal as required under Georgia law

General Consideration (Cont’d) when the official witness was a notary. Rainwater v. Chase Home Finance, LLC (In re Rainwater), No. 08-71489-MGD, No. 09-6711, 2013 Bankr. LEXIS 4294 (Bankr. N.D. Ga. Sept. 18, 2013). Memorandum of trust indenture could not provide constructive notice of the existence of a mortgage and could not give rise to inquiry notice since the debtor did not sign the memorandum, the memorandum did not fall into any of the recognized categories of documents that could be recorded under the Georgia Code, and the memorandum was not properly attested. Detention Mgmt., LLC v. UMB Bank, NA (In re Mun. Corr., LLC), 501 B.R. 119, 2013 Bankr. LEXIS 4269 (Bankr. N.D. Ga. 2013). Provisions of rider incorporated by reference. - Although the provisions of a rider or attached document may be incorporated into a security deed, the signatures attesting to execution of the rider or attached document do not suffice as an attestation of the security deed itself unless the language clearly states as such. Gordon v. Wells Fargo Bank, N.A., 504 B.R. 668, 2014 Bankr. LEXIS 183 (Bankr. N.D. Ga. 2014). Defendant purchasers were entitled to summary judgment on the trustee’s avoidance action under 11 U.S.C. § 544(a)(3) because the deed at issue did not have any defects on the deed’s face and was properly filed and recorded, thereby meeting the requirements necessary to provide constructive notice to the subsequent bona fide purchasers. Kelley v. Goforth (In re Brownlee), 606 B.R. 508, 2019 Bankr. LEXIS 2867 (Bankr. M.D. Ga. 2019). Properly attested adjustable rate rider did not validate improperly attested deed to secure debt; even though rider was incorporated into the terms of the deed, the deed itself remained improperly attested and ineligible for recordation. Stone v. Decatur Fed. Sav. & Loan Ass’n (In re Fleeman), 81 B.R. 160, 1987 Bankr. LEXIS 1958 (Bankr. M.D. Ga. 1987). Actual notice of prior mortgage. - A mortgage of real estate attested by but one witness is not void under O.C.G.A.

§ 44-14-33, and, if a subsequent mortgagee or purchaser buys or takes a mortgage with actual notice of a prior mortgage, the buyer takes subject to it, even though it have but one witness. Gardner, Dexter & Co. v. Moore, Trimble & Co., 51 Ga. 268, 1874 Ga. LEXIS 114 (1874); Donalson v. Thomason, 137 Ga. 848, 74 S.E. 762, 1912 Ga. LEXIS 169 (1912). Certificate of acknowledgment. - Under O.C.G.A. § 44-14-33 which requires a mortgage to be attested before a notary public or justice of a court, it is not necessary that the notary should attach a formal certificate of acknowledgment. In re Virgin, 224 F. 128, 1915 U.S. Dist. LEXIS 1338 (D. Ga. 1915). Sufficiency of certificate. - A certificate, under O.C.G.A. § 44-14-33, which merely stated “sworn to and subscribed before me,” shows that the same one who subscribed the instrument swore to it, and is sufficient, whether it refers to the grantor or to the attesting witnesses since probate by either would be sufficient. In re Hammett, 286 F. 392, 1923 U.S. Dist. LEXIS 1788 (D. Ga. 1923). Signing acknowledgment. - The subsequent signing of an acknowledgment of an original signature before a notary public, who attests the last signature, to a previously executed contract of conditional sale, is in effect a re-execution. Saranac Mach. Co. v. Heyward, 293 F. 499, 1923 U.S. App. LEXIS 1633 (5th Cir. 1923). Affidavit of execution as substitute for attestations. - Under O.C.G.A. § 44-14-33, an affidavit of the execution of a bill of sale, given as security, made before a notary public by one who was not an attesting witness, was insufficient as “proof” to substitute due attestation, and did not render the instrument eligible to record. In re Smith, 281 F. 574, 1922 U.S. Dist. LEXIS 1504 (D. Ga. 1922). Attestation incorporated by reference. - Chapter 7 trustee could avoid, pursuant to 11 U.S.C. § 544(a), a security deed for real property that did not contain an attestation because the deed, which incorporated the terms of another document by reference, did not also incorporate the attestations to that document and did not meet the requirements for con-

structive notice under O.C.G.A. § 44-1433. Gordon v. Terrace Mortg. Co. (In re Hong Ju Kim), No. 06-66024-CRM, No. 06-06593-CRM, 2007 Bankr. LEXIS 4398 (Bankr. N.D. Ga. Nov. 28, 2007), rev’d, No. 1:08-CV-0079-RWS, 2009 U.S. Dist. LEXIS 131004 (N.D. Ga. Oct. 2, 2009). Questions were certified to the Georgia Supreme Court as to whether proper attestation of a rider whose provisions were incorporated into a security deed could satisfy the requirements of O.C.G.A. § 4414-33 for the deed itself or could create inquiry notice, such that a bankruptcy trustee could not avoid the deed under 11 U.S.C. § 544(a)(3). Wells Fargo Bank, N.A. v. Gordon (In re Codrington), 691 F.3d 1336, 2012 U.S. App. LEXIS 18033 (11th Cir. 2012). Affidavit signed by a notary testified to both execution and attestation of a security deed and, thus, substantially complied with the requirements of O.C.G.A. § 44-2-18 to cure any defect in attestation under O.C.G.A. §§ 44-14-33 and 44-14-61 caused by the notary’s signature appearing under the term “acknowledgement.” As the affidavit cured the defect, the security deed was eligible for recordation under Georgia law, and its recordation provided constructive notice to a subsequent bona fide purchasers and, thus, a bankruptcy trustee could not use the trustee’s strong-arm powers to avoid the security deed. Kelley v. Wells Fargo Bank, N.A. (In re Perry), 565 B.R. 442, 2017 Bankr. LEXIS 256 (Bankr. M.D. Ga. 2017). Signature of notary to the acknowledgment or probate can be construed as an attestation, under O.C.G.A. § 44-1433. Saranac Mach. Co. v. Heyward, 293 F. 499, 1923 U.S. App. LEXIS 1633 (5th Cir. 1923). No signature of unofficial witness. - Security deed did not contain the requisite signature of an unofficial witness. The defect in the deed was patent and, under Georgia law, the deed did not provide constructive notice to a bona fide purchaser, and thus, the trustee was entitled to avoid the security deed pursuant to 11 U.S.C. § 544. Gordon v. Wells Fargo Bank, N.A., 504 B.R. 668, 2014 Bankr. LEXIS 183 (Bankr. N.D. Ga. 2014). Place of execution. - A mortgage on real estate, which contains no recital as to

its place of execution, except the caption, “Georgia, Washington County,” and the attesting clause wherein the official witness signs his name with the addition, “J. P., Bartow, Jefferson County, Georgia,” is to be construed as showing upon its face that it was attested by the official witness in Jefferson County, and, if otherwise entitled to record, may be recorded in that county. If the word Bartow had been omitted, it would be presumed to have been attested in Washington County. Bryant v. Davis, 145 Ga. 531, 89 S.E. 512, 1916 Ga. LEXIS 388 (1916). Husband signing wife’s name. - Under O.C.G.A. § 44-14-33 where a husband signs his wife’s name to a mortgage purporting to be executed by her, in her immediate presence and by her express request and direction, the effect of such signature is the same as if she had signed the mortgage herself. Hawes v. Glover, 126 Ga. 305, 55 S.E. 62, 1906 Ga. LEXIS 376 (1906). Particular Transactions Mortgages on realty. - In order to be entitled to record, mortgages on realty must be attested by two witnesses under O.C.G.A. § 44-14-33. Bryant v. Davis, 145 Ga. 531, 89 S.E. 512, 1916 Ga. LEXIS 388 (1916). Contract for conditional sale of personalty. - Though attestation of a written contract for the conditional sale of personalty in compliance with O.C.G.A. § 44-14-33 is necessary to its being legally recorded, yet it is not essential that the attesting witness be an official, if proper probate is made. Burgsteiner v. StreetOverland Co., 30 Ga. App. 140, 117 S.E. 268, 1923 Ga. App. LEXIS 317 (1923). Crops of cotton and corn. - Crops of cotton and corn being realty, in order to be entitled to record, a mortgage of the same must have been attested by two witnesses, one an official, under O.C.G.A. § 44-1433. Farmers Whse. Co. v. First Nat’l Bank, 152 Ga. 262, 109 S.E. 900, 1921 Ga. LEXIS 67 (1921); Whatley v. VirginiaCarolina Chem. Co., 31 Ga. App. 226, 120 S.E. 436, 1923 Ga. App. LEXIS 860 (1923). Bill of sale with reservation of title. - To be valid as against third persons, an instrument purporting to be a bill of sale

Particular Transactions (Cont’d) with reservation of title must be executed in the presence of and attested by and approved before one of the officials named in O.C.G.A. § 44-14-33. E.E. Forbes Piano Co. v. Oliver, 11 Ga. App. 65, 74 S.E. 713, 1912 Ga. App. LEXIS 255 (1912). Judge of superior courts. - A judge of the superior court of this state is authorized to attest mortgages. Strauss v. Maddox, 109 Ga. 223, 34 S.E. 355, 1899 Ga. LEXIS 616 (1899). Stockholder of a corporation bears such financial relation to it that the stockholder is disqualified from attesting, as a notary, a mortgage to which the corporation is a party. Southern Iron & Equip. Co. v. Voyles, 138 Ga. 258, 75 S.E. 248, 1913D Am. Ann. Cas. 369 (1912); Peagler v. Davis, 143 Ga. 11, 84 S.E. 59, 1917A Am. Ann. Cas. 232 (1915). Employee of bank. - A mortgage to a bank attested by an employee of the bank as a notary public does not render it invalid under O.C.G.A. § 44-14-33. In re Virgin, 224 F. 128, 1915 U.S. Dist. LEXIS 1338 (D. Ga. 1915). Probate. - The attesting witness of a deed of mortgage swore that the attesting witness was “a subscribing witness to the mortgage; that he saw the maker of the same assign it: and also saw the other subscribing witnesses assign it.” Thus, the court held that the probate was insufficient to admit the mortgage to record. Stanley v. Suggs, 23 Ga. 137, 1857 Ga. LEXIS 226 (1857). Admissibility of parol evidence. - Parol evidence of the facts attending the execution of a security deed cannot be considered to aid it, but the validity of the record must be established by the face of the record, and of the recorded instrument, since O.C.G.A. § 44-14-33 requires not only the execution of such a deed in the officer’s presence but also the attestation by the officer, or the subsequent probate before the officer, and that fact must appear by official certificate and not otherwise. In re Hammett, 286 F. 392, 1923 U.S. Dist. LEXIS 1788 (D. Ga. 1923). Attestation of security deed. - First sentence of O.C.G.A. § 44-14-33 and the statutory recording scheme indicate that

the word “duly” in the second sentence of § 44-14-33 should be understood to mean that a security deed is “duly filed, recorded, and indexed” only if the clerk responsible for recording determines, from the face of the document, that it is in the proper form for recording, meaning that it is attested or acknowledged by a proper officer and (in the case of real property) an additional witness; the General Assembly chose to enact the 1995 amendment to O.C.G.A. § 44-14-33 not as a freestanding Code provision but as an addition to a Code provision clearly referenced by O.C.G.A. § 44-14-61, and the General Assembly is presumed to have been aware of the existing state of the law when the legislature enacted the 1995 amendment so the placement of the amendment makes complete sense. United States Bank Nat’l Ass’n v. Gordon, 289 Ga. 12, 709 S.E.2d 258, 2011 Ga. LEXIS 271 (2011). Because an eight-paged security deed lacked the signature of an unofficial witness, the deed was not in recordable form as required by O.C.G.A. § 44-14-33 and did not provide constructive notice, therefore, the security deed was avoidable under 11 U.S.C. § 544 with regard to a debtor’s bankruptcy. Wells Fargo Bank, N.A. v. Gordon, 292 Ga. 474, 749 S.E.2d 368, 2013 Ga. LEXIS 158 (2013). Bankruptcy trustee was entitled to avoid a security deed, pursuant to 11 U.S.C. § 544, because the security deed was not duly recorded as the security deed did not appear to have two signatures and, therefore, did not appear to comply with all statutory requirements under O.C.G.A. §§ 44-2-15 and 44-14-33. Gordon v. Ameritrust Mortg. Co. LLC (In re Nesbitt), No. 09-72233-WLH, No. 11-5251, 2013 Bankr. LEXIS 3979 (Bankr. N.D. Ga. Sept. 13, 2013). Trustee was entitled to avoid a creditor’s security interest under the strong arm powers because it was not validly perfected under Georgia law; a security deed did not contain the requisite signature of an unofficial witness. One affidavit failed to meet the incorporation requirement set out in security deed, and an attorney’s affidavits did not properly show that the attorney witnessed a debtor’s execution of the security deed; rather, they were merely an affirmation that the

attorney’s explanations preceded the debtor’s execution. Gordon v. OneWest Bank FSB, (In re Blackmon), 509 B.R. 415, 2014 Bankr. LEXIS 1518 (Bankr. N.D. Ga. 2014). Affidavit accompanying deed constituted substantial compliance. - Even assuming that a creditor’s security deed was defective under O.C.G.A. § 4414-33 by its lack of a notary seal, an affidavit accompanying the deed constituted substantial compliance with the remedial provisions of O.C.G.A. § 44-2-18, curing the alleged defect, and a bankruptcy trustee thus could not avoid the lien under 11 U.S.C. § 544(a). Gordon v.

Terrace Mortg. Co., 571 F.3d 1342, 2009 U.S. App. LEXIS 13208 (11th Cir. 2009). Default judgment when security deeds lacked signatures. - Facts in a trustee’s complaint were sufficient to support the entry of default judgment against a bank as the subject security deeds lacked the requisite signatures to constitute constructive notice under O.C.G.A. 44-14-33; thus, the deeds were unenforceable against a subsequent bona fide purchaser. Gordon v. Wells Fargo Bank, N.A. (In re Lawton), No. 08-71494-MGD, No. 13-05261, 2014 Bankr. LEXIS 1179 (Bankr. N.D. Ga. Feb. 16, 2014).

RESEARCH REFERENCES Am. Jur. 2d. 55 Am. Jur. 2d, Mortgages, § 89 et seq. C.J.S. 59 C.J.S., Mortgages, § 110. ALR. Imputation to attesting witness of notice of contents of instrument, 4 A.L.R. 716. Effect of purported subscribing witness’s denial or forgetfulness of signature by mark, 17 A.L.R. 1267. Sufficiency of certificate of acknowledgment, 29 A.L.R. 919. Statute of frauds: doctrine of part performance as applied to advance of money

on oral agreement for mortgage on real estate, 30 A.L.R. 1403. Validity of mortgage executed by entryman on public land before patent, 41 A.L.R. 938. Formal acknowledgment of instrument by one whose name is signed thereto by another as an adoption of the signature, 57 A.L.R. 525. Variance from statute of wording of affidavit required by it to accompany chattel mortgage, 143 A.L.R. 1254. Sufficiency of certificate of acknowledgment, 25 A.L.R.2d 1124.