O.C.G.A. § 44-14-61 (2019)

Annotations

JUDICIAL DECISIONS Applicability. - There is nothing in O.C.G.A. § 44-14-61 that in any way changes the rules governing the priority of conditional sales contracts and junior judgments; that section applies only to bills of sale to secure debt and security deeds. Parham v. Heath, 90 Ga. App. 26, 81 S.E.2d 848, 1954 Ga. App. LEXIS 618 (1954). Unwitnessed paper. - In the absence of fraud, a deed which on its face complies with all statutory requirements is entitled to be recorded, and once accepted and filed with the clerk for record, provides constructive notice to the world of its existence. Leeds Bldg. Prods. v. Sears Mortg. Corp., 267 Ga. 300, 477 S.E.2d 565, 1996 Ga. LEXIS 920 (1996) (overruling White v. Magarahan, 1891 Ga. LEXIS 132, 87 Ga. 217, 13 S.E. 509 (1891)); Propes v. Todd, 89 Ga. App. 308, 79 S.E.2d 346, 1953 Ga. App. LEXIS 955 (1953). Because no unofficial witness attested to or acknowledged a security deed when debtor signed it, despite the recordation of the deed and a subsequent recordation of a scrivener’s affidavit attesting that the affiant, an attorney, was an unofficial witness to the signing of the deed, under Georgia law, specifically, O.C.G.A. § 4414-61, the deed was unperfected; subsequent assignments of the security deed to a bank and then to the creditor were not

equivalent to a perfected second security deed that acknowledged the first and, thus, did not cure the patent defect in the deed. Wash. Mut. Home Loans v. Yearwood, 318 B.R. 227, 2004 Bankr. LEXIS 1965 (Bankr. M.D. Ga. 2004). Failure to properly attest security deed failed to provide notice of security interest. - Security deed in favor of a bank was not attested by an unofficial witness as required by Georgia law and was patently defective and, thus, the security deed did not provide constructive or actual notice of any security interest. As an unattested security deed was equivalent to an unrecorded deed under Georgia law, a Chapter 7 trustee, in the trustee’s position as a hypothetical bona fide purchaser of real estate, had the power to avoid the transfer of the improperly attested deed, and the avoided lien was preserved for the benefit of the estate. Flatau v. Ga. Bank & Trust Co. of Augusta (In re Davis), No. 14-30349-JPS, No. 143033, 2014 Bankr. LEXIS 4588 (Bankr. M.D. Ga. Oct. 29, 2014). Unnotarized deed could not be recorded. - Notary was required to place the notary seal on any notarial act, including attestation of the Bank Security Deed, and failure to do so rendered the Bank Security Deed ineligible for recordation because an officer as provided in O.C.G.A.

§ 44-2-15 did not attest to execution of the deed in accordance with O.C.G.A. § 4414-61. To rule otherwise would make the requirements imposed on notary publics under O.C.G.A. § 45-17-6(a)(1) inapplicable to the common notarial act of attesting to a security deed. Kelley v. Thomasville Nat’l Bank (In re Taylor), No. 1670218- JTL, No. 16-07006, 2016 Bankr. LEXIS 4202 (Bankr. M.D. Ga. Dec. 7, 2016). Effect of failure to record a mortgage or bill of sale to secure debt “shall be the same as is the effect of failure to record a deed of bargain and sale.” This changes the prior law with reference to those securities so as to render such instruments, even though unrecorded, superior in rank to subsequent liens created by law. Manchester Motors, Inc. v. F & M Bank, 91 Ga. App. 811, 87 S.E.2d 342, 1955 Ga. App. LEXIS 870 (1955). No priority unless recorded. - Where a bill of sale in its renewed form was for a larger amount than the balance due on the original instrument, in a contest between it and the bill of sale held by the original holder, it would only have had priority in the amount that was still due on the original bill of sale at the time the same was renewed, only it if was properly recorded. Propes v. Todd, 89 Ga. App. 308, 79 S.E.2d 346, 1953 Ga. App. LEXIS 955 (1953). 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). Security deed was improperly attested where it did not bear the signature of either an unofficial witness or a notary public, and recordation of the document was therefore ineffective to give actual or constructive notice. Updike v. First Fed. Sav. & Loan Ass’n, 93 B.R. 795, 1988 Bankr. LEXIS 2041 (Bankr. M.D. Ga. 1988). 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). 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). Deed reference as notice of prior improperly attested deed. - Reference in a properly attested and recorded secu-

rity deed to a prior improperly attested and therefore “unrecorded” security deed provided notice of the existence of the first security deed. Updike v. First Fed. Sav. & Loan Ass’n, 93 B.R. 795, 1988 Bankr. LEXIS 2041 (Bankr. M.D. Ga. 1988). Rescission had no legal effect. - While the rescission was signed by two

witnesses and notarized in accordance with O.C.G.A. § 44-14-61, there was no evidence of the grantor conveying such an interest. Thus, the rescission had no legal effect. Mak v. Argent Mortg. Co., LLC, No. 1:07-cv-02806-JOF, 2009 U.S. Dist. LEXIS 84746 (N.D. Ga. Sept. 15, 2009).

RESEARCH REFERENCES Am. Jur. 2d. 55 Am. Jur. 2d, Mortgages, §§ 89, 90. C.J.S. 59 C.J.S., Mortgages, §§ 110, 111. 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, 25 A.L.R.2d 1124.