O.C.G.A. § 44-2-15 (2019)

Annotations

JUDICIAL DECISIONS

Recorded deed must be attested, acknowledged, or proven by affidavit. - To admit a deed to record, it must be a perfect deed. It must be attested by two witnesses. It must be attested or acknowledged, if executed in this state, as provided in former Civil Code 1910, § 4202 (see O.C.G.A. § 44-2-15), or it must be probated as provided in former Civil Code 1910, § 4205 (see O.C.G.A. § 44-2-18). Citizens' Bank v. Taylor, 169 Ga. 203, 149 S.E. 861 (1929).

Deeds of realty and personalty may be acknowledged before, as well as attested by, an officer, or proven by the affidavit of a subscribing witness to prepare the deeds for record. Webb v. United-American Soda Fountain Co., 59 F.2d 329 (5th Cir. 1932).

Effect of statutory modification. - Codifiers intentionally modified preexisting law which allowed clerk of inferior court to make attestation required. Miller v. Southwestern R.R., 55 Ga. 143 (1875); Kennedy v. McCardel, 88 Ga. 454, 14 S.E. 710 (1892) (decided under former Code 1873, § 2706, prior to amendment by Ga. L. 1924, p. 83, § 1).

For other modifications made by the codifiers, see Gress Lumber Co. v. Coody, 99 Ga. 775, 27 S.E. 169 (1896); Anderson & Conley v. Leverette, 116 Ga. 732, 42 S.E. 1026 (1902).

Attestation by justice of peace of another state does not meet requirements of this statute. Eaton v. Freeman, 58 Ga. 129 (1877) (see O.C.G.A. § 44-2-15).

Attestation by notary public of another county. - Attestation by a notary public of another county than that in which recordation is sought does not meet requirements of this statute. Allgood v. State, 87 Ga. 668, 13 S.E. 569 (1891). See also Brockett v. American Slicing Mach. Co., 18 Ga. App. 670, 90 S.E. 366 (1916) (see O.C.G.A. § 44-2-15).

Clerk of superior court can attest deed in the county wherein the clerk holds office, and not elsewhere, and the clerk cannot only witness a deed when the deed is to be recorded in that county. Anderson & Conley v. Leverette, 116 Ga. 732, 42 S.E. 1026 (1902).

Attesting officer presumed to have jurisdiction. - In the absence of direct evidence to the contrary, a deed is presumed to have been executed where attested, and the attesting officer is presumed to have had jurisdiction. Rowe v. Spencer, 132 Ga. 426, 64 S.E. 468, 47 L.R.A. (n.s.) 561 (1909); Flint River Lumber Co. v. Smith, 134 Ga. 627, 68 S.E. 436 (1910). See also Glover v. Cox, 137 Ga. 684, 73 S.E. 1068, 1913B Ann. Cas. 191 (1912); Cammon v. State, 20 Ga. App. 175, 92 S.E. 957 (1917).

Lack of attestation or acknowledgment as affecting notice. - Registry of deed not attested, or not legally proved or acknowledged, is not constructive notice to a subsequent purchaser. Citizens' Bank v. Taylor, 169 Ga. 203, 149 S.E. 861 (1929).

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 the statutory requirements under O.C.G.A. §§ 44-2-15 and 44-14-33. Gordon v. Ameritrust Mortg. Co. LLC (In re Nesbitt), Bankr. (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 the security deed, and an attorney's affidavits did not properly show that the attorney witnessed a debtor's execution of the security deed; rather, the affidavits were merely an affirmation that the attorney's explanations preceded the debtor's execution. Gordon v. OneWest Bank FSB, (In re Blackmon), 509 Bankr. 415 (Bankr. N.D. Ga. 2014).

Alleged defect in notarization not apparent on face of document. - Trial court did not err in granting summary judgment to the corporations on the issue of whether the corporations had actual or constructive notice of fraud regarding the relatives' quitclaim deeds despite the relatives' assertions that the deeds were notarized after the deeds were signed and were notarized outside the presence of each of the relatives; even assuming the assertion was true, that defect in proper notarization was not apparent from the face of any of the deeds involved, all of which were signed, witnessed, and notarized. Bowman v. Century Funding, Ltd., 277 Ga. App. 540, 627 S.E.2d 73 (2006).

Improper attestation of deed. - 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. § 44-14-61. 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), Bankr. (Bankr. M.D. Ga. Dec. 7, 2016).

Agreement properly construed as valid deed. - Trial court did not err by determining that the original Redemption Agreement could be construed as a valid deed because O.C.G.A. §§ 44-2-15 and 44-5-30 do not provide that unless so attested, a deed is void and O.C.G.A. § 44-5-33 provides that no prescribed form is essential to the validity of a deed to lands. Bagwell v. Trammel, 297 Ga. 873, 778 S.E.2d 173 (2015).

RESEARCH REFERENCES

Am. Jur. 2d. - 23 Am. Jur. 2d, Deeds, § 99.

C.J.S. - 26A C.J.S., Deeds, §§ 68, 69.