O.C.G.A. § 44-14-49 (2019)

Annotations

Law reviews. For note discussing enforcement of se-

curity agreements in equity in light of Article 9, Part 5 of the Uniform Commercial Code, see 3 Ga. L. Rev. 198 (1968).

JUDICIAL DECISIONS History of equitable foreclosures. - Formerly the process of foreclosure of a mortgage in England was by bill in chancery. Bailey v. Lumpkin, 1 Ga. 392, 1846 Ga. LEXIS 89 (1846); Mahone v. Elliott, 141 Ga. 214, 80 S.E. 713, 1914 Ga. LEXIS 177 (1914). Holders of mortgages may now resort to equity for their foreclosure, without alleging any special grounds of equitable interference. DeLay v. Latimer, 155 Ga. 463, 117 S.E. 446, 1923 Ga. LEXIS 94 (1923). Courts have fuller power by this section. - O.C.G.A. § 44-14-49 allowing mortgages to be foreclosed in equity conferred fuller powers upon the court by this mode of procedure than it had at law; and in addition to the foreclosure, a personal decree may be rendered against the mortgagor. Clay v. Banks, 71 Ga. 363, 1883 Ga. LEXIS 187 (1883). Where foreclosure already had at law. - Where the creditor has an honest mortgage on personalty, and has foreclosed the same at law, the creditor has no occasion, either as a substitute for, or in aid of the foreclosure proceeding, to file a

bill in a court of equity under O.C.G.A. § 44-14-49 in order to realize the fruits of the foreclosure as against fraudulent mortgages of prior date on the same property, which are also foreclosed, and under which the property has been seized and is about to be sold. Manheim v. Claflin & Co., 81 Ga. 129, 7 S.E. 284, 1888 Ga. LEXIS 75 (1888). Foreclosure in connection with contempt action not authorized. - Contempt proceeding against former husband to enforce the terms of a divorce decree granting former wife an equitable lien on property conveyed to husband was merely ancillary to the divorce action and the court was not authorized to permit foreclosure upon the property. Harris v. U.S. Dev. Corp., 269 Ga. 659, 502 S.E.2d 721, 1998 Ga. LEXIS 749 (1998). Court of Appeals denied jurisdiction. - Since an action to enforce an equitable foreclosure is in equity, 1983 Const., Art. VI, Sec. VI, Para. III operates to deny jurisdiction of the Court of Appeals to hear a case arising under O.C.G.A. § 44-14-49. Arnold v. Hickey,

169 Ga. App. 750, 315 S.E.2d 273, 1984 Ga. App. LEXIS 1697 (1984). Personal judgment against debtor becoming barred. - Under O.C.G.A. § 44-14-49 the fact that a personal judgment against the debtor had become barred did not render dormant that part of the decree which declared that the creditor held a valid legal title to the policy to the extent specified. Conway v. Caswell, 121 Ga. 254, 48 S.E. 956, 1904 Ga. LEXIS 101 (1904). Payment to purchaser from mortgagor before foreclosure. - Where A, the owner of land, borrows money from B and gives a security deed, taking a bond for titles, and subsequently mortgages the land to C to secure the payment of money borrowed, and then sells and transfers the bond for titles to D, who has notice of the mortgage, and D pays off the claims of B, C cannot in equity foreclose the mortgage on the land and have it sold without first paying or tendering to D the amount paid by the latter to B. Crawford v. Maddox, 117 Ga. 135, 43 S.E. 421, 1903 Ga. LEXIS 172 (1903). County of foreclosure of mortgage on realty. - A mortgage on land cannot be foreclosed in a county other than where the land lies under a legal proceeding, but it might be otherwise if the foreclosure were sought in equity under O.C.G.A. § 44-14-49. Allen v. Glenn, 87 Ga. 414, 13 S.E. 565, 1891 Ga. LEXIS 177 (1891). Action for damages for breach of bond with a prayer of foreclosure. - An action of an equitable nature under

O.C.G.A. § 44-14-49 by a building and loan association for damages resulting from the breach of a bond given to it by a member to whom it had made an advance upon the member’s stock, with a prayer for the foreclosure of a mortgage which the member had executed to secure the payment of such damages, was well brought. Morgan v. Interstate Bldg. & Loan Ass’n, 108 Ga. 185, 33 S.E. 964, 1899 Ga. LEXIS 210 (1899). Failure to issue execution on judgment. - Where upon a petition to foreclose a mortgage in equity under O.C.G.A. § 44-14-49 a judgment was rendered foreclosing the mortgage, while, so far as the same may purport to be a general personal judgment, it is dormant because of failure to issue an execution thereon in terms of the statute relating to dormancy of judgments, it is valid and enforceable as a decree foreclosing a mortgage. Conway v. Caswell, 121 Ga. 254, 48 S.E. 956, 1904 Ga. LEXIS 101 (1904); Lindsey v. Porter & Garrett, 140 Ga. 249, 78 S.E. 848, 1913 Ga. LEXIS 96 (1913). Holder of one of several notes secured by same mortgage may foreclose the mortgage in equity. The holder of the other notes is a proper, even if not a necessary, party to the proceeding. Willingham & Cone v. Huguenin, 129 Ga. 835, 60 S.E. 186, 1908 Ga. LEXIS 205 (1908). Sufficiency of petition. Ford v. Tifton Guano Co., 144 Ga. 353, 87 S.E. 274, 1915 Ga. LEXIS 200 (1915).

RESEARCH REFERENCES Am. Jur. 2d. 55 Am. Jur. 2d, Mortgages, § 633 et seq. C.J.S. 59 C.J.S., Mortgages, § 490 et seq. ALR. Personal representatives, or nonlien creditors, of deceased mortgagor or of deceased grantee of premises subject to mortgage (with or without assumption of

mortgage debt), as necessary or proper parties to foreclosure suit, 124 A.L.R. 784. Remedy of mortgagee in forged or unauthorized mortgage where proceeds are used to discharge valid lien, 151 A.L.R. 407. Right, after foreclosure, to reformation on ground of erroneous description originating in mortgage, 172 A.L.R. 655.

ARTICLE 3 CONVEYANCES TO SECURE DEBT AND BILLS OF SALE 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.

Law reviews. For article surveying recent legislative and judicial developments in Georgia’s real property laws, see 31 Mercer L. Rev. 187 (1979).

JUDICIAL DECISIONS Recorded deed constitutes notice. - A duly filed and recorded deed to secure debt is notice of all the rights which the grantee has thereunder. Cummings v. Johnson, 218 Ga. 559, 129 S.E.2d 762, 1963 Ga. LEXIS 261 (1963). Creditor reliance on judicial determination justified. - Creditors were entitled to rely upon a previous judicial

determination that their secured property had not been transferred and to proceed with their foreclosure sale, following the filing of a bankruptcy petition by the alleged transferee, on the assumption that the property was not part of the bankruptcy estate. Albany Partners, Ltd. v. Westbrook, 749 F.2d 670, 1984 U.S. App. LEXIS 15686 (11th Cir. 1984).

PART 1 IN GENERAL