O.C.G.A. § 44-2-3 (2019)

Annotations

Law reviews. - For annual survey of real property law, see 56 Mercer L. Rev. 395 (2004). For article, ‘‘Eleventh Circuit Sur-

vey: January 1, 2008 - December 31, 2008: Article: Trial Practice and Procedure,’’ see 60 Mercer L. Rev. 1313 (2009).

JUDICIAL DECISIONS Ga. 194, 210 S.E.2d 710 (1974) (see O.C.G.A. § 44-2-3). Effect of restrictive covenants in unrecorded instrument. - Purchaser of land without actual notice may take free of restrictive covenants contained in an unrecorded contract or deed. Jenkins v. Sosebee, 74 Bankr. 440 (Bankr. N.D. Ga. 1987).

Section applies to subsequent purchasers from grantor’s agents, but not others. - This statute, while including bona fide purchasers from administrators, executors, and others who in effect sell land as agents of the grantor making the voluntary conveyance, does not include purchasers acquiring title from other sources. Harper v. Paradise, 233

Section includes subsequent purchasers from grantor’s agents, but not others. - This statute, providing that ‘‘every voluntary deed or conveyance made by any person shall be void as against subsequent bona fide purchasers for value without notice of such voluntary conveyance,’’ while including bona fide purchasers from administrators, executors, and others who in effect sell land as agents of the grantor making the voluntary conveyance, does not include purchasers acquiring title from other sources. Mathis v. Solomon, 188 Ga. 311, 4 S.E.2d 24 (1939) (see O.C.G.A. § 44-2-3). When an original owner executed a voluntary deed to a life tenant and remainderman, and the life tenant executed a deed in fee simple to a bona fide purchaser without notice, this statute would not pass a superior title or create a superior equity in favor of such a purchaser from the life tenant. Mathis v. Solomon, 188 Ga. 311, 4 S.E.2d 24 (1939) (decided under former Code 1933, § 96-205). Notice once recorded. - Under Georgia’s recording statute, O.C.G.A. § 44-2-3, the world was on notice of mortgage company’s security deed once the deed was recorded; because of that, no one who purchased an interest after recording of that security deed could have been a bona fide purchaser of interest superior to mortgage company’s. Gordon v. Novastar Mortg., Inc. (In re Hedrick), 524 F.3d 1175 (11th Cir. 2008), cert. denied, 129 S. Ct. 631, 172 L.Ed.2d 610 (2008). Dispute based on recording of land sales contract. - Recording of a contract to sell land took priority over a later recorded deed transferring the disputed land. Parks v. Stepp, 277 Ga. 704, 594 S.E.2d 364 (2004). Internal Revenue Service lien. - Claim by the Internal Revenue Service that a reformation of a conveyance deed that had failed to describe all of the property that was being transferred had no effect on a prior lien filed by the IRS had no merit because O.C.G.A. § 44-2-3 (on which the IRS was relying) provided only that an unrecorded conveyance was void only against certain subsequent bona fide purchasers and did not mention creditors such as the IRS. Nat’l Assistance Bureau, Inc. v. Macon Mem. Intermediate Care Home, Inc., No. 5:06-cv-301 (CAR), 2009 U.S. Dist. LEXIS 66362 (M.D. Ga. June 8, 2009).

What constitutes a voluntary conveyance. - Voluntary conveyance is one made without any consideration deemed valuable in law to support the conveyance. Clayton v. Tucker, 20 Ga. 452 (1856); Almond v. Gairdner & Arnold, 76 Ga. 699 (1886). Voluntary conveyance depends upon the intention of the parties, which is to be ascertained by an inquiry into all the facts and circumstances at the time of the conveyance’s execution which will throw light upon the question as to whether the deed was a sale or gift. Martin v. White, 115 Ga. 866, 42 S.E. 279 (1902); Shackelford v. Orris, 135 Ga. 29, 68 S.E. 838 (1910). Payment necessary to constitute bona fide purchase. - Actual payment of the purchase price, before notice, is essential to the maintenance of the claim that one is a bona fide purchaser of property for value and without notice. Rowe v. Gaskins, 148 Ga. 817, 98 S.E. 493 (1919). Grantee in security deed acting in good faith stands in attitude of bona fide purchaser, and is entitled to the same protection. Roop Grocery Co. v. Gentry, 195 Ga. 736, 25 S.E.2d 705 (1943). Priority of landlord’s lien. - Bona fide purchaser without notice will be protected against a landlord’s lien for rent. Thornton v. Carver, 80 Ga. 397, 6 S.E. 915 (1888). To sustain voluntary conveyance against subsequent bona fide purchaser, notice to purchaser must be actual. Finch v. Woods, 113 Ga. 996, 39 S.E. 418 (1901); Scott v. Atlas Sav. & Loan Ass’n, 114 Ga. 134, 39 S.E. 942 (1901); Waters v. Wells, 155 Ga. 439, 117 S.E. 322 (1923); Roop Grocery Co. v. Gentry, 195 Ga. 736, 25 S.E.2d 705 (1943). Constructive notice alone is not sufficient to defeat the rights of a subsequent bona fide purchaser. Herndon v. Kimball, 7 Ga. 432, 50 Am. Dec. 406 (1849); Byrd v. Aspinwall, 108 Ga. 1, 33 S.E. 688 (1899) (decided prior to Orig. Code 1863, § 2588 and under Civil Code 1895, § 3530). Registration is insufficient notice to bona fide purchaser. - Registration of a voluntary deed does not constitute such notice to a subsequent bona fide purchaser as will deprive the purchaser of the preference to which the purchaser is entitled. Fleming v. Townsend, 6 Ga. 103, 50 Am. Dec. 318 (1849); Finch v. Woods, 113 Ga. 996, 39 S.E. 418 (1901). For additional cases, see 6 Enc. Dig. 642.

Cited in Leggett v. Patterson, 114 Ga. 714, 40 S.E. 736 (1902); West v. Wright, 121 Ga. 470, 49 S.E. 285 (1904); Culbreath v. Martin, 129 Ga. 280, 58 S.E. 832 (1907); Stubbs v. Glass, 143 Ga. 56, 84 S.E. 126 (1915); Leachman v. Cobb Dev. Co., 226 Ga. 103,

172 S.E.2d 688 (1970); Pressley v. Jennings, 227 Ga. 366, 180 S.E.2d 896 (1971); Wiggins v. Southern Bell Tel. & Tel. Co., 245 Ga. 526, 266 S.E.2d 148 (1980); Minor v. McDaniel, 210 Ga. App. 146, 435 S.E.2d 508 (1993).

RESEARCH REFERENCES Rule which makes priority of title depend upon priority of record as applied to record of later instrument in second chain title which antedates record of original instrument in first chain record of which, however, antedated record of original instrument in second chain, 133 ALR 886. Priority between devisee under devise pursuant to testator’s agreement and third person claiming under or through testator’s unrecorded deed, 7 ALR2d 544.

Am. Jur. 2d. - 23 Am. Jur. 2d, Deeds, §§ 7, 191. 58 Am. Jur. 2d, Notice, § 18. C.J.S. - 26A C.J.S., Deeds, § 158. ALR. - Use of diminutive or nickname as affecting operation of record as notice, 45 ALR 557. Presumption and burden of proof as regards good faith and consideration on part of purchaser or one taking encumbrancer subsequent to unrecorded conveyance or encumbrance, 107 ALR 502.