O.C.G.A. § 44-2-23 (2019)

Annotations

Cross references. - Admissibility of certified copies of deeds in lieu of original, §§ 24-5-27, 24-5-28.

Law reviews. - For article surveying real property law, see 34 Mercer L. Rev. 255 (1982).

JUDICIAL DECISIONS Analysis General Consideration Applicability to Instruments and Issues Admissibility of Recorded Instrument Procedure as to Proof of Genuineness Illustrative Cases Kennedy v. Harden, 92 Ga. 230, 18 S.E. 542 (1893). Cited in Gunn v. Wades, 65 Ga. 537 (1880); Webb v. Till, 134 Ga. 388, 67 S.E. 1034 (1910); Burt v. Gooch, 37 Ga. App. 301, 139 S.E. 912 (1927); Cook v. Parks, 46 Ga. App. 749, 169 S.E. 208 (1933); Rogers v. Eason, 183 Ga. 431, 188 S.E. 693 (1936); Minor v. Fincher, 206 Ga. 721, 58 S.E.2d 389 (1950); Gibson v. Causey, 223 Ga. 135, 153 S.E.2d 704 (1967); Metts v. Easters, 229 Ga. 754, 194 S.E.2d 450 (1972); Allgood v. Allgood, 230 Ga. 312, 196 S.E.2d 888 (1973); State Hwy. Dep’t v. Kinsey, 131 Ga. App. 770, 206 S.E.2d 835 (1974).

General Consideration Rule was taken from the common law. McArthur v. Morrison, 107 Ga. 796, 34 S.E. 205 (1899). Statute is to be strictly construed. Haithcock v. Sargent, 145 Ga. 84, 88 S.E. 550 (1916) (see O.C.G.A. § 44-2-23). Affidavit is a special pleading to be employed solely as a basis for raising and trying an issue as to the genuineness of a recorded deed. Haithcock v. Sargent, 145 Ga. 84, 88 S.E. 550 (1916). Statute is intended to qualify the ordinary effect of registry, leaving the genuineness of the deed to be proved as with respect to other papers not required by law to be registered. Hanks v. Phillips, 39 Ga. 550 (1869) (see O.C.G.A. § 44-2-23). Remedy is cumulative; any other method of attacking the genuineness of the deed may also be employed. John Doe v. Roe, 36 Ga. 463 (1867); Sibley v. Haslam, 75 Ga. 490 (1885); Knight v. Suddeth & Crenshaw, 126 Ga. 231, 55 S.E. 31 (1906). Effect of the statute is to make registration the equivalent of proof in the absence of an attack for forgery. McArthur v. Morrison, 107 Ga. 796, 34 S.E. 205 (1899) (see O.C.G.A. § 44-2-23). For this statute to apply, deed must have been recorded in county in which land lies; it is not sufficient if the deed has been recorded in an adjoining county in which other land embraced in the deed lies.

Applicability to Instruments and Issues Statute has no application to an unregistered deed. Payne v. Ormond, 44 Ga. 514 (1871); Gorham v. Montfort, 137 Ga. 134, 72 S.E. 893 (1911) (see O.C.G.A. § 44-2-23). Statute applies to any registered deed though more than 30 years old. Hill v. Nisbet, 58 Ga. 586 (1877); Patterson v. Collier, 75 Ga. 419, 54 Am. R. 472 (1885); Leverett v. Tift, 6 Ga. App. 90, 64 S.E. 317 (1909) (see O.C.G.A. § 44-2-23). Statute not applicable to a will, though duly probated and admitted to record. Smith v. Stone, 127 Ga. 483, 56 S.E. 640 (1907) (see O.C.G.A. § 44-2-23). Copy of a deed when admissible as proof may also be attacked for forgery. Patterson v. Collier, 75 Ga. 419, 54 Am. R. 472 (1885).

security deed, which the possessor failed to prove was a fraud since the possessor’s signature on the deed matched that as appeared on the answer filed. The trial court properly rejected the possessor’s attempt to examine the mortgage company’s counsel regarding the authenticity of the deed since counsel represented the mortgage company and was, therefore, not competent to testify. Egana v. HSBC Mortg. Corp., 294 Ga. App. 456, 669 S.E.2d 159 (2008). Effect of deed question of law. - Generally, a registered deed is entitled to be admitted in evidence, and the effect of such a deed is a question of law for the court. Miles v. Blanton, 211 Ga. 754, 88 S.E.2d 273 (1955). Recorded bill of sale admissible without proof of execution. - In the absence of an attack on a properly witnessed and recorded bill of sale, placing upon a party the burden of proving the bill of sale’s execution, it was not error to admit the bill of sale without proof of the bill of sale’s execution. Watkins v. Muse, 78 Ga. App. 17, 50 S.E.2d 90 (1948). Bill of sale for an automobile was not inadmissible because it was not recorded prior to bringing this suit. Recordation has no effect on title to personalty, which is acquired by the grantee in the bill of sale upon the execution and delivery of the instrument by the grantor. Recording an absolute bill of sale to personalty has only the effect of making the instrument admissible in evidence without further proof of the bill of sale’s execution. Jones v. Liberty Mut. Fire Ins. Co., 90 Ga. App. 667, 83 S.E.2d 837 (1954). Certified copy has same effect as original recorded instrument. - Certified copy must be considered the same instrument as the original recorded retention title contract so that the admissibility of one necessarily controls the admissibility of its twin, providing, of course, that some reason appears why it should be necessary to introduce both. Dawson v. General Disct. Corp., 82 Ga. App. 29, 60 S.E.2d 653 (1950).

Applicability to Instruments and Issues (Cont’d) Copy of deed not properly recorded is not admissible into evidence. Thus, the question of forgery is immaterial. Kennedy v. Harden, 92 Ga. 230, 18 S.E. 542 (1893); Crummey & Hamilton v. Bentley, 114 Ga. 746, 40 S.E. 765 (1902). Only issue permissible under this statute is that of forgery vel non. Roberts v. Roberts, 101 Ga. 765, 29 S.E. 271 (1897) (see O.C.G.A. § 44-2-23). This statute, being a special statutory proceeding designed to answer the one purpose of calling in question and trying the one issue as to the execution of the deed, there is no authority of law for drawing into the trial of that issue questions foreign to the fact of execution, and which tend only to raise an estoppel against the alleged grantor. Richards v. Smith, 170 Ga. 398, 153 S.E. 44 (1930) (see O.C.G.A. § 44-2-23). This statute applies only when recorded deed is collaterally introduced in evidence, and does not refer to instruments forming the basis of the action. Steiner v. Blair, 38 Ga. App. 753, 145 S.E. 471 (1928) (see O.C.G.A. § 44-2-23). Admissibility of Recorded Instrument Recorded deed admissible without further proof of execution. - Deed attested by three witnesses, one of whom is an officer authorized by law to attest deeds, and recorded is admissible in evidence without further proof of the deed’s execution, and all presumptions are in favor of the deed’s genuineness. Guthrie v. Gaskins, 171 Ga. 303, 155 S.E. 185 (1930). When the deed to the plaintiff, on which the plaintiff claimed title to the property in dispute, recited a valuable consideration and had been duly recorded, and no affidavit of forgery had been filed as required by this statute, the court did not err in admitting the deed in evidence over the objection that there was no proof of the deed’s execution. Page v. Brown, 192 Ga. 398, 15 S.E.2d 506 (1941) (see O.C.G.A. § 44-2-23). In a dispossessory action brought by a mortgage company against a possessor, the trial court properly granted the mortgage company a writ of possession as the company produced a recorded certified copy of the

Procedure as to Proof of Genuineness Presumption that alteration made at or before deed’s execution. - Presumption is that any alteration was made at or before the time of the execution of the deed and, in the absence of an affidavit of forgery, the regis-

McCall, 119 Ga. 530, 46 S.E. 645 (1904). When no affidavit filed, burden of disputing genuineness upon party against whom deed admitted. - When no affidavit is filed, the burden is upon the party against whom the deed is admitted to disprove the deed’s genuineness. Leverett v. Tift, 6 Ga. App. 90, 64 S.E. 317 (1909); Haithcock v. Sargent, 145 Ga. 84, 88 S.E. 550 (1916); Jett v. Hart, 152 Ga. 266, 109 S.E. 654 (1921). If a deed is duly recorded and no affidavit of forgery is filed, the burden of disputing the deed’s genuineness rests upon the party against whom the deed has been admitted, though, in the ultimate sense, the burden of establishing the execution of the deed is upon the party offering the deed, throughout all the exigencies of the trial. McCall v. Asbury, 190 Ga. 493, 9 S.E.2d 765 (1940). Sufficiency of affidavit of forgery. - Affidavit must be made either by alleged maker of deed, the maker’s heirs, or opposite party in the case. Kelly v. William Sharp Saddlery Co., 99 Ga. 393, 27 S.E. 741 (1896). Deed, when offered, may be attacked by an affidavit of forgery by the opposite party, whether the plaintiff or the defendant, and even by one who is not a party to the cause if one is the maker of the deed or an heir of the maker of the deed. Steiner v. Blair, 38 Ga. App. 753, 145 S.E. 471 (1928). In order to cast on the applicant for registration under the Land Registration Law (see § 44-2-40 et seq.) the burden of proving the genuineness of a deed shown in the preliminary report of the examiner, an affidavit of forgery must be filed, and written objections, though verified, which aver that certain deeds are forgeries, do not amount to an affidavit of forgery. McCall v. Asbury, 190 Ga. 493, 9 S.E.2d 765 (1940). No issue of genuineness when affidavit’s purpose to show party induced to sign instrument. - When the alleged maker of a deed which is the basis of an action against the maker files an affidavit that the deed is a forgery, it is the duty of the court to arrest the case and require an issue to be made and tried as to the genuineness of the alleged instrument. The court does not err in refusing to require such an issue to be made and in allowing the instrument to be admitted in evidence where the defendant admits the genuineness of the defendant’s signature, and when it appears, from the defendant’s

tered deed is admitted in evidence without an explanation of the alteration. Collins v. Boring, 96 Ga. 360, 23 S.E. 401 (1895); McConnell Bros. v. Slappey, 134 Ga. 95, 67 S.E. 440 (1910); Gilmer v. Harrison, 146 Ga. 721, 92 S.E. 67 (1917). Presumption is sufficiently strong to admit a deed in evidence over objection that the deed has been altered since the deed’s execution. Buck v. Kitchens, 155 Ga. 721, 118 S.E. 51 (1923). Burden of proof where affidavit of forgery filed. - Filing of the affidavit places upon the party introducing the deed the burden of showing affirmatively what the law in case of a registered deed presumes in the party’s favor: that it was in fact executed and delivered in accordance with what purports to be the facts as stated therein. Holland v. Carter, 79 Ga. 139, 3 S.E. 690 (1887); Collins v. Boring, 96 Ga. 360, 23 S.E. 401 (1895); Bentley v. McCall, 119 Ga. 530, 46 S.E. 645 (1904); Sapp v. Cline, 131 Ga. 433, 62 S.E. 529 (1908); Strickland v. Babcock Lumber Co., 142 Ga. 120, 82 S.E. 531 (1914); James v. Steele, 147 Ga. 598, 95 S.E. 11 (1918). When the burden is upon the plaintiff to establish the genuineness of a deed, it will not suffice, after having shown the death of the two attesting witnesses to the deed, to prove the genuineness of the signature of the attesting witnesses, but, in order to carry the burden, one should go further and introduce primary evidence, that is, proof of the actual signing by the alleged maker of the deed, or of the genuineness of the maker’s signature affixed thereto, or that such evidence is not attainable. Strickland v. Babcock Lumber Co., 142 Ga. 120, 82 S.E. 531 (1914). Filing an affidavit of forgery changes the burden of proof as to registered deeds, whereas primarily the party offering a deed has the burden of proving the deed’s execution, the party may, in the absence of the affidavit, shift this burden by showing its regular registration, thereby making such a prima-facie case of genuineness that throughout the trial the deed is to be given the probative weight to which a genuine deed is entitled, unless further proof overcomes this presumption prima-facie raised in its favor. McCall v. Asbury, 190 Ga. 493, 9 S.E.2d 765 (1940). Proof of signing and signature may be done by circumstantial evidence. Bentley v.

Right to new trial. - Upon decision of forgery issue against the plaintiff, plaintiff has right to move for new trial. Vance v. Gamble, 95 Ga. 730, 22 S.E. 576 (1895).

Procedure as to Proof of Genuineness (Cont’d) testimony, that the purpose of the affidavit is not to enable the defendant to prove a material and fraudulent alteration of the instrument, subsequent to the instrument’s execution, by the party claiming a benefit thereunder, but is merely to show that the defendant was induced to sign the instrument without reading the instrument, relying upon the good faith of the opposite party to incorporate therein the terms of the agreement previously arrived at. Ford v. Serenado Mfg. Co., 27 Ga. App. 535, 109 S.E. 415 (1921); Odum v. Cotton States Fertilizer Co., 38 Ga. App. 46, 142 S.E. 470 (1928). Evidence admissible to show deed forged. - Affidavit of forgery, provided by this statute to be filed where the execution of a deed is denied, is in effect only a special pleading by which the factum of a deed may be determined in a special proceeding. Except for casting the burden of establishing the genuineness of the deed upon the party tendering the deed, the special plea is in effect no more than any other defense, for even though no affidavit of forgery is filed, if the defendant in the defendant’s plea denies the execution of the deed, evidence is nevertheless admissible which tends to show that the deed is forged and fraudulent. United States v. 550.6 Acres of Land, 68 F. Supp. 151 (N.D. Ga. 1945), aff ’d sub nom. Shropshire v. Hicks, 157 F.2d 767 (5th Cir. 1946) (see O.C.G.A. § 44-2-23). Notwithstanding that the deed had been recorded, the plaintiff was not required to file an affidavit of forgery, but could assail the deed’s genuineness by allegation, thereby assuming the burden of disproving the deed’s genuineness. Stow v. Hargrove, 203 Ga. 735, 48 S.E.2d 454 (1948) (see O.C.G.A. § 44-2-23). Possession of premises under forged deed. - It is possible to enter into possession of premises in good faith under forged deed, but the circumstances attendant upon the execution of the forgery are admissible in evidence as throwing light upon the bona fides of entry. Thorpe v. Atwood, 100 Ga. 597, 28 S.E. 287 (1897).

Illustrative Cases Reversible error not found in admission of deed. - In an action for trespass to land, it was not reversible error to admit in evidence a deed conveying to the defendant all of a certain land lot, when the entire controversy was with regard to only a portion of that lot, and the prevailing party relied for that party’s claim to this portion of the lot not on this deed, but to other paper title and independent adverse possession. Anderson v. Black, 191 Ga. 627, 13 S.E.2d 650 (1941). Proof held sufficient to establish forgery. - Proof that a deed purporting to have been executed in 1835 was not recorded until 1883, when the subscribing witnesses were dead and shortly before the action for the land was brought, and also that the alleged grantor could not, in fact, write the grantor’s name, and signed interrogatories with the grantor’s mark, denying the signature of the deed, while the deed purported to be signed in writing, was held sufficient to establish forgery. Walker v. Logan, 75 Ga. 759 (1885). When the plaintiff, in an equitable proceeding seeking to enjoin the defendant from evicting the plaintiff from the premises, allege that the plaintiff was not a tenant of the defendant but was the owner of the premises, and that if the defendant claimed to have a deed to the premises, the deed was either a forgery or was fraudulently obtained, and the defendant in the defendant’s answer claimed that the plaintiff was a tenant and that the defendant owned the title by virtue of the deed from the plaintiff, and the plaintiff testified that the plaintiff never executed a deed conveying the land to the defendant, this was sufficient (even though the recorded deed was introduced in evidence, and even though the subscribing witnesses testified as to its genuineness) to support a verdict and decree in favor of the plaintiff permanently enjoining the defendant from evicting the plaintiff from the premises involved. Hightower v. Phillips, 184 Ga. 532, 192 S.E. 26 (1937).

RESEARCH REFERENCES Forged deed or bond for title as constituting color of title, 68 ALR2d 452. Procuring signature by fraud as forgery, 11 ALR3d 1074. Presumptions and burden of proof as to time of alteration of deed, 30 ALR3d 571.

Am. Jur. 2d. - 23 Am. Jur. 2d, Deeds, § 166. C.J.S. - 26 C.J.S., Deeds, §§ 424, 445. ALR. - Parol evidence rule as applied to escrow agreement, 49 ALR 1529. Forgery as affecting registration under Torrens Act, 68 ALR 357.