O.C.G.A. § 44-2-6 (2019)

Annotations

Law reviews. - For annual survey of real property law, see 56 Mercer L. Rev. 395 (2004). JUDICIAL DECISIONS Obligee in a recorded bond is protected to the extent of purchase money actually paid before notice of the rights of a grantee in a senior unrecorded deed from the obligor in the bond. The recorded bond for title does not take priority over the unrecorded senior deed to the extent of the entire estate purchased. Gleaton v. Wright, 149 Ga. 220, 100 S.E. 72 (1919). Transfer under security deed on same basis as to recordation as deed itself. - Transfer of title held under the security deed, made to assign all interest in the debt secured as in the land as security therefor, stands on the same basis as to execution and recordation as the deed itself. Citizens & S. Bank v. Farr, 164 Ga. 880, 139 S.E. 658 (1927); Mortgage Guarantee Co. of Am. v. Atlanta Com. Bank, 166 Ga. 412, 143 S.E. 562 (1928). Recorded security deed entitled to priority over unrecorded bond for title. - After one obtained and duly recorded a security deed without notice of any kind of the existence of prior unrecorded bond for title from one’s grantor to the same land, the former is entitled to priority in the distribution of the proceeds derived from the sale of the land. The same priority exists in favor of subsequent holders under duly recorded deeds as against a transferee of the bond, such transfer never having been recorded. Fender v. Hodges, 166 Ga. 727, 144 S.E. 278 (1928).

Purpose of 1921 amendments. - Amendment of statute in 1921 was passed to supplement the original section. McClure v. Smith, 115 Ga. 709, 42 S.E. 53 (1902); Guaranty Inv. & Loan Co. v. Athens Eng’g Co., 152 Ga. 596, 110 S.E. 873 (1922) (see O.C.G.A. § 44-2-6). Amendment of this statute in 1921 made further provision for recording bonds for title, supplements the original language of this statute, and made plainer the statute’s meaning. Fender v. Hodges, 166 Ga. 727, 144 S.E. 278 (1928) (see O.C.G.A. § 44-2-6). Priority of contract over deed. - 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). Primary intent and purpose of this statute was to give notice to all persons dealing with the obligor, from the date of the filing of the bond, of the interest and equity of the holder of the bond in the property therein described so that any one acquiring a lien on or title to the property after the filing of the bond would take the property subject to the interest and equity of the obligee in the bond. Gleaton v. Wright, 149 Ga. 220, 100 S.E. 72 (1919); Fender v. Hodges, 166 Ga. 727, 144 S.E. 278 (1928); Peterson v. Perry, 191 Ga. 816, 14 S.E.2d 100 (1941). Phrase ‘‘equity of the holder’’ refers to equity as is derived from terms of instrument, and not to some other equity which the holder has in the property. Peterson v. Perry, 191 Ga. 816, 14 S.E.2d 100 (1941).

therein enjoyed superior title to any disputed property within the bounds of that description. Parks v. Stepp, 260 Ga. App. 431, 579 S.E.2d 874 (2003), aff ’d, 277 Ga. 704, 594 S.E.2d 364 (2004). 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). Cited in New London Square, Ltd. v. Diamond Elec. & Supply Corp., 132 Ga. App. 433, 208 S.E.2d 348 (1974); Milligan v. Gilmore Meyer Inc., 775 F. Supp. 400 (S.D. Ga. 1991).

Recording of collateral assignment. - When a collateral assignment was properly recorded, purchasers were presumed thereby to have bought real property with knowledge of the assignee’s power to foreclose under the collateral assignment, and the purchasers were not bona fide purchasers for value without notice; thus, the assignee’s security interest took priority over the purchasers’ rights. Palmetto Capital Corp. v. Smith, 284 Ga. App. 819, 645 S.E.2d 9 (2007), cert. denied, 2007 Ga. LEXIS 649 (Ga. 2007). Priority between contracts for sale. - Because a sales contract was recorded first, the description of the boundaries contained therein prevailed, and the landowners

RESEARCH REFERENCES Priority between devisee under devise pursuant to testator’s agreement and third person claiming under or through testator’s unrecorded deed, 7 ALR2d 544. Risk of loss by casualty pending contract for conveyance of real property - modern cases, 85 ALR4th 233.

Am. Jur. 2d. - 23 Am. Jur. 2d, Deeds, §§ 4, 270. 66 Am. Jur. 2d, Records and Recording Laws, § 47. ALR. - Use of diminutive or nickname as affecting operation of record as notice, 45 ALR 557. Constructive trust against one holding merely bond for deed or other executory contract and not legal title, 173 ALR 1275.