O.C.G.A. § 44-14-4 (2019)

Annotations

Editor’s notes. Ga. L. 1962, p. 156, § 1, provides that

any provision of Code Sections 44-14-1, 44-14-2, 44-14-4, 44-14-7 through 44-1412, 44-14-100, and 44-14-160, and Arts. 2 and 3, Ch. 14, of this title which conflicts with T. 11 shall yield to and be superseded by T. 11. See Code Section 11-10-103.

JUDICIAL DECISIONS Cancellation need not be under seal. - There is no requirement that a cancellation of a mortgage should be under seal. Sims v. Scheussler, 5 Ga. App. 850, 64 S.E. 99, 1909 Ga. App. LEXIS 152 (1909). Priority of new security taken by mortgagee who surrenders original note and mortgage. - Where the mortgagee takes new security and enters upon the note and mortgage the word “satisfied,” and surrenders them to the mortgagor, and the mortgage is duly canceled on the record, this amounts to an extinguishment of the mortgage, and the new security is inferior to an intervening mortgage on the same property, of which the first mortgagee had notice at the time the mortgagee canceled the mortgage and accepted the new security. Farkas v. Third Nat’l Bank, 133 Ga. 755, 66 S.E. 926, 1910 Ga. LEXIS 52 (1910). Cancellation under mistake of fact, see Woodside v. Lippold, 113 Ga. 877, 39 S.E. 400, 1901 Ga. LEXIS 403 (1901). Good faith purchase at sale under power without notice of satisfaction of debt. - While a power of sale in a mortgage is extinguished by the payment of the debt the mortgage was given to secure, if the mortgagor fails to have the satisfaction of the debt entered of record and a sale is thereafter had under the power, one who purchases in good faith and for value at such sale, without notice of the fact of the satisfaction of the debt, will be protected in title. Garrett v. Crawford, 128 Ga. 519, 57 S.E. 792, 1907 Ga. LEXIS 156 (1907). Effect of forged entry of satisfaction. - Where the mortgagor fraudulently substitutes a copy for the original,

and forges an entry of satisfaction thereon and has it cancelled of record, it does not affect the mortgagee, even as to a bona fide purchaser. Luther v. Clay, 100 Ga. 236, 28 S.E. 46, 1897 Ga. LEXIS 33 (1897). Liability of clerk for recording forged cancellation order. - When a mortgagor presents to a clerk an original mortgage of record and an order to the clerk, purporting to have been signed by the mortgagee, to cancel such mortgage on the record, and the clerk has no knowledge of the invalidity of the order, nor any reason to suspect the same, the act of recording the order does not render the clerk and the sureties on the clerk’s official bond liable to a person injured by such entry, notwithstanding the order was forged. Luther v. Banks, 111 Ga. 374, 36 S.E. 826, 1900 Ga. LEXIS 546 (1900). Instrument containing no defeasance clause is a deed or bill of sale to secure debt. - A written instrument which by its terms passes title from the vendor to the vendee as security for a debt, and which contains no defeasance clause, is a deed or bill of sale to secure a debt, and is not a mortgage. The title conveyed thereunder does not automatically revert to the vendor upon the payment of the debt, but continues thereafter in the vendee, and is not divested until the performance of some act, as a reconveyance from the vendee to the vendor, or the cancellation and surrender of the instrument by the vendee as required by statute. Grady v. T.I. Harris, Inc., 41 Ga. App. 111, 151 S.E. 829, 1930 Ga. App. LEXIS 474 (1930).

OPINIONS OF THE ATTORNEY GENERAL Recordation requirements. - When a paid mortgage or security deed is filed with an order of cancellation upon it, clerks of superior court may record the canceled instrument or only the part which bears the order; the part recorded

should be sufficient to identify the transaction; clerks should index cancellations of security instruments with the name of the borrower (mortgagor) in the “grantee” index, make all notations required by statute in the indices and on the record-

ings, and charge a fee of $3.50, unless the cancellation is by new deed, in which case the fee for recording a deed should also be charged. 1989 Op. Att’y Gen. U89-19.

Cancellation of security deeds and writs of execution from record, see 1972 Op. Att’y Gen. No. U72-79.

RESEARCH REFERENCES Am. Jur. 2d. 55 Am. Jur. 2d, Mortgages, § 430. C.J.S. 59 C.J.S., Mortgages, § 479. ALR. Rights in mortgage security, of mortgagor or intermediate grantee who pays the mortgage debt after conveying the property, 2 A.L.R. 242. Release of mortgagor (or intermediate grantee who has assumed the mortgage) by subsequent dealings between the mortgagor’s grantee and mortgagee, 41 A.L.R. 277; 72 A.L.R. 389; 81 A.L.R. 1016; 112 A.L.R. 1324. Doctrine by inverse order of alienation as affected by release or part of property covered by mortgage or other lien, 110 A.L.R. 65; 131 A.L.R.4th 108. Reacquisition by mortgagor, or his grantee, of the title through foreclosure of

first mortgage as affecting rights under second mortgage to which the property was subject before the foreclosure, 111 A.L.R. 1285. Requiring security as condition of canceling of record mortgage or lien, or of recording payment, 2 A.L.R.2d 1064. Construction and effect of real-estate mortgage clause providing for payment of a premium or additional sum if mortgagor prepays principal debt, 70 A.L.R.2d 1334. Construction of provision in real-estate mortgage, land contract, or other security instrument for release of separate parcels of land as payments are made, 41 A.L.R.3d 7. Damages recoverable for real-estate mortgagee’s refusal to discharge mortgage or give partial release therefrom, 8 A.L.R.4th 853.