Priority of unrecorded deed of bargain and sale.

- Unrecorded deed of bargain and sale is postponed only to later bona fide purchasers for value without notice. Ivey v. Transouth Fin. Corp., 566 F.2d 1023 (5th Cir. 1978).

Admissibility of unrecorded instruments.

- Unrecorded deeds or mortgages may be introduced in evidence upon sufficient proof of execution. Ivey v. Transouth Fin. Corp., 566 F.2d 1023 (5th Cir. 1978).

Fraudulent deed was facially regular and operated to release security interest.

- A 2003 warranty deed that operated to release a prior lender's security interest in the property was not a forgery but was signed by someone fraudulently assuming the authority of an officer of the prior lender and was regular on the deed's face. Therefore, a subsequent lender that foreclosed on the property and purchased the property at the foreclosure sale was a bona fide purchaser for value entitled to take the property free of the prior lender's security interest. Deutsche Bank Nat'l Trust Co. v. JP Morgan Chase Bank, N.A., 307 Ga. App. 307, 704 S.E.2d 823 (2010).

Cited in Hagan v. Hagan, 165 Ga. 364, 141 S.E. 54 (1927); Florida Blue Ridge Corp. v. Tennessee Elec. Power Co., 106 F.2d 913 (5th Cir. 1939); Mack Trucks, Inc. v. Ryder Truck Rental, Inc., 110 Ga. App. 68, 137 S.E.2d 718 (1964).

Editor's notes.

- All of the following notes were taken from cases decided prior to the effective date of Art. 9, T. 11, January 1, 1964. See § 11-10-101.

On the history of this statute, see Crummey & Hamilton v. Bentley, 114 Ga. 746, 40 S.E. 765 (1902); Durrence v. Northern Nat'l Bank, 117 Ga. 385, 43 S.E. 726 (1903); McTyre v. Stearns, 142 Ga. 850, 83 S.E. 955 (1914) (see O.C.G.A. § 44-2-21).

Former Civil Code 1895, §§ 5060 and 5062 (see O.C.G.A. § 9-10-113) did not repeal former Civil Code 1895, § 3621 (see O.C.G.A. § 44-2-21). Simpson v. Wicker, 120 Ga. 418, 47 S.E. 965, 1 Ann. Cas. 542 (1904).

Purpose.

- Requirement of this statute is merely a provision for admission of paper to record. Balchin v. Jones, 10 Ga. App. 434, 73 S.E. 613 (1912) (see O.C.G.A. § 44-2-21).

"Attestation" and "subscribed" construed.

- Attestation is witnessing actual execution of paper, and subscribing one's name as witness to fact. Gilliam v. Burgess, 169 Ga. 705, 151 S.E. 652 (1930).

What is intended as signature constitutes signing.

- Exactly what constitutes a signing has never been reduced to a judicial formula. The principle is that whatever the testator or grantor is shown to have intended as the grantor's signature is a valid signing, no matter how imperfect, unfinished, fantastical, illegible, or even false the separate characters or symbols the grantor used might be when critically judged. Gilliam v. Burgess, 169 Ga. 705, 151 S.E. 652 (1930).

Consul's attestation must be done at consulate.

- It is clear that it was not intended that a consul could act in relation to the matter of attesting deeds at any other place than that at which the laws of the United States authorize the consul to perform such acts. Therefore, if a consul of the United States attests a deed at any place other than the consulate, such attestation would not be sufficient to authorize the record of the deed. McCandless v. Yorkshire Guarantee & Sec. Corp., 101 Ga. 180, 28 S.E. 663 (1897). See also, Long v. Powell, 120 Ga. 621, 48 S.E. 185 (1904).

Certificate evidences fact of execution and attestation of deed.

- Words in subsection (a)(1) would seem to contemplate a certificate in every instance as evidence not merely of the fact that the person purporting to be the attesting officer is such an officer, but of the whole complex fact of execution and attestation of the deed, including the identity and official character of the attesting witness. McTyre v. Stearns, 142 Ga. 850, 83 S.E. 955 (1914) (see O.C.G.A. § 44-2-21).

Acknowledgement when deed executed out of state.

- When a deed to realty in this state is executed out of the state, a judge of a court of record of the venue of the execution may take an acknowledgment thereof. Cunningham v. Barker, 109 Ga. 613, 35 S.E. 53 (1900).

Clerk's certificate under court's seal is prima facie evidence of judicial authority. Ford v. Nesmith, 117 Ga. 210, 43 S.E. 483 (1903).

For illustration of procedure of acknowledgement before clerk, see Ford v. Nesmith, 117 Ga. 210, 43 S.E. 483 (1903).

Effect of lack of seal or certificate on out-of-state bill of sale.

- Bill of sale executed out of this state, probated before a notary public, is not entitled to record in Georgia when the seal of the notary is not attached, and when the official character of the notary is not certified by a clerk of the court of record in the county or city of the residence of the notary. Southeastern Equip. Co. v. Peoples Ins. & Fin. Co., 105 Ga. App. 539, 125 S.E.2d 114 (1962).

Clerk's certificate referring to power under which notary holds appointment not required.

- This statute does not require the certificate of the clerk to contain any statement with reference to the power under which the notary holds the notary's appointment. Durrence v. Northern Nat'l Bank, 117 Ga. 385, 43 S.E. 726 (1903) (see O.C.G.A. § 44-2-21).

Requirement of two witnesses not satisfied.

- Attestation of deed to realty solely by notary does not satisfy requirement of this statute for two witnesses. Kimbrell v. Thomas, 139 Ga. 146, 76 S.E. 1024 (1912) (see O.C.G.A. § 44-2-21).

Presumption that deed executed within attesting officer's jurisdiction.

- Every presumption which the law may indulge may be invoked in favor of the inference that the deed was executed within the attesting official's jurisdiction since the deed does not bear evidence to the contrary. Glover v. Cox, 137 Ga. 684, 73 S.E. 1068, 1913B Ann. Cas. 191 (1912). See also In re Williams, 224 F. 984 (S.D. Ga. 1915).

Rubber stamp qualifies as "seal".

- Deeds executed in states allowing notaries public to use a rubber stamp in indelible ink, in lieu of a raised seal, qualify for recordation in Georgia. 1975 Op. Att'y Gen. No. U75-53.