O.C.G.A. § 44-14-35 (2019)

Annotations

Cross references. Imposition, rate, collection, and assessment of taxes, § 48-6-60 et seq. Law reviews. For comment on Nalley Chevrolet, Inc. v. California Bank, 100 Ga. App. 197, 110 S.E.2d 577 (1959), appearing below, see 12 Mercer L. Rev. 283 (1960).

JUDICIAL DECISIONS Section repealed English statute. - O.C.G.A. § 44-14-35 is repugnant to the Statute 32 Henry VIII, Chapter 9, and therefore the Act repealed the statute, if it was ever in force in Georgia. Doe v. Roe, 23 Ga. 82, 1857 Ga. LEXIS 222 (1857). Mortgages effective from time of record as to third persons. - Mortgages, as against the interest of third parties acting in good faith and without notice, who may have acquired a transfer or lien binding the same property, take effect from the time they are filed for record, under O.C.G.A. § 44-14-35. Hays v. Reynolds, 53 Ga. 328, 1874 Ga. LEXIS 478 (1874); W.A. Patterson Co. v. Peoples Loan & Sav. Co., 158 Ga. 503, 123 S.E. 704, 1924 Ga. LEXIS 287 (1924). See also, Albany Nat’l Bank v. Georgia Banking Co., 137 Ga. 776, 74 S.E. 267, 1912 Ga. LEXIS 144 (1912).

Re-recordation required. - The record of a mortgage defectively attested or probated amounts to no record of it. If the mortgage afterwards be attested so as to entitle it to record, it must be recorded anew in order for it to be constructive notice. The entry of the name of the new attesting official upon the old record is improper and will not suffice. Donalson v. Thomason, 137 Ga. 848, 74 S.E. 762, 1912 Ga. LEXIS 169 (1912); Nalley Chevrolet, Inc. v. California Bank, 100 Ga. App. 197, 110 S.E.2d 577, 1959 Ga. App. LEXIS 572 (1959). If a mortgage containing a power of sale is duly recorded, it may be exercised as against the mortgagor and those claiming under the mortgagor, either by deed, or as purchasers at a judicial sale, under process to which the mortgage is superior

in its lien. Calloway v. People’s Bank, 54 Ga. 572, 1875 Ga. LEXIS 264 (1875). Record as between parties. - Generally, as among themselves, the priority of mortgage liens is fixed by the date of the

record, in the absence of the elements of notice. Durden v. Aycock Bros., 13 Ga. App. 420, 79 S.E. 213, 1913 Ga. App. LEXIS 183 (1913).

OPINIONS OF THE ATTORNEY GENERAL Purpose of section. - The purpose of O.C.G.A. § 44-14-35 is to provide protec-

tion against third parties. 1950-51 Ga. Op. Att’y Gen. 113.

RESEARCH REFERENCES C.J.S. 59 C.J.S., Mortgages, § 192 et seq. ALR. Priority as between judgment lien and unrecorded mortgage, 4 A.L.R. 434. Priority were senior instrument affecting real property is recorded after execution but before recording of junior instrument, 32 A.L.R. 344. Fraudulent misrepresentation or concealment by a contracting party concerning title to property or other subjects which are matters of public record, 33 A.L.R. 853; 56 A.L.R. 1217. Who may take advantage of failure to renew real estate mortgage as provided by statute, 97 A.L.R. 739. Mortgagee’s release of mortgagor’s personal liability by dealings with purchaser of part of mortgaged property who had assumed mortgage debt as affecting lien

of mortgage upon other which has been conveyed by mortgagor to third person, 101 A.L.R. 618. Constitutionality of retroactive statute limiting time for duration or enforcement of existing mortgage, or other real estate lien, or ground rent, 158 A.L.R. 1043. Statutes precluding enforcement of real-estate mortgage after prescribed period unless holder complies with certain conditions respecting record of amount remaining unpaid, 174 A.L.R. 652. Necessity that mortgage covering oil and gas lease be recorded as real-estate mortgage, and/or filed or recorded as chattel mortgage, 34 A.L.R.2d 902. Reinstatement and restoration of mortgages released or discharged without authorization, as against subsequent purchasers, lienholders, judgment creditors, and the like, without notice, 35 A.L.R.2d 948.