O.C.G.A. § 44-2-18 (2019)

Annotations

JUDICIAL DECISIONS affidavit did not make reference to attestation. Gordon v. Terrace Mortg. Co. (In re Hong Ju Kim), No. 06-66024-CRM, 2007 Bankr. LEXIS 4398 (Bankr. N.D. Ga. Nov. 28, 2007). Clerk of court, with witnesses, can authenticate deed. - Clerk of the superior court alone of the county in which a deed is attested, and in which the deed must be recorded, can, by the clerk’s official attestation, with one or more other witnesses, give the deed such authenticity as to admit the deed to record. Bosworth v. Davis, 26 Ga. 406 (1858). Signature presumed genuine. - If a deed purports to be executed in the presence of, and is attested by, an officer authorized to make such attestation and another witness, and is recorded, as permitted by this statute, the signature is presumed genuine. But this may be disproved and the signature shown to be a forgery. Hansen v. Owens, 132 Ga. 648, 64 S.E. 800 (1909) (see O.C.G.A. § 44-2-18).

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). When a recorded security deed did not contain an attestation, but included a closing attorney’s affidavit, the deed was not properly attested under O.C.G.A. § 44-2-18 because, while the closing attorney’s affidavit indicated that the deed was executed, the

constituted substantial compliance with the remedial provisions of O.C.G.A. § 44-2-18, curing the alleged defect, and a bankruptcy trustee thus could not avoid the lien under 11 U.S.C. § 544(a). Gordon v. Terrace Mortg. Co. (In re Hong Ju Kim), 571 F.3d 1342 (11th Cir. 2009). 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). For historical discussion of common law and statutory provisions on attestation and acknowledgment, see Webb v. United-American Soda Fountain Co., 59 F.2d 329 (5th Cir. 1932). Cited in A.O. Blackmar Co. v. NCR, 64 Ga. App. 739, 14 S.E.2d 153 (1941).

What constitutes substantial compliance. - When a subscribing witness to a deed which is not officially attested at the time of the deed’s execution appears before an officer authorized to officially attest a deed, and on oath testifies to the execution and delivery of the deed according to law, and signs an affidavit setting forth the execution, and the certificate of the officer to the affidavit states that it was ‘‘sworn to before’’ the officer, but omits to certify that the deed was ‘‘subscribed’’ in the officer’s presence, the affidavit of probate is a sufficient compliance with the terms of this statute. Willie v. Hines-Yelton Lumber Co., 167 Ga. 883, 146 S.E. 901 (1929) (see O.C.G.A. § 44-2-18). Even assuming that a creditor’s security deed was defective under O.C.G.A. § 44-14-33 by the deed’s lack of a notary seal, an affidavit accompanying the deed

RESEARCH REFERENCES Am. Jur. 2d. - 23 Am. Jur. 2d, Deeds, §§ 98, 99.