Application and definition of "deed".

- Requisites of "a deed to lands" have been defined in this section, thus indicating a recognition, as other courts have defined, that the word "deed" is one of wide application and of definition other than a narrow one whereby lands are conveyed. This is true, although when used in this state it is usually understood in the more limited and restricted sense as referring to land conveyances. Powell v. Powell, 196 Ga. 694, 27 S.E.2d 393 (1943).

Deed ineligible for recordation.

- Deed was materially altered when an attachment containing the description of one of two parcels of property was removed, the deed was ineligible for recordation, and the buyer's failure to object to the recording of the altered deed did not support a finding that the buyer accepted the altered deed without objection as: (1) the seller did not re-sign the deed and it was not re-attested; (2) the buyer was not sent the altered deed or land description; (3) there was no evidence that the buyer consented to the alteration or that the buyer otherwise agreed to accept only one parcel of land; (4) the delivery of the altered deed to the bank's attorney was not constructive delivery to the buyer as the attorney represented the bank and the buyer had not authorized the attorney to accept and retain the recorded deed on the buyer's behalf; and (5) the buyer never received a copy of the altered deed or land description before or after the deed was recorded. Z & Y Corp. v. Indore C. Stores, Inc., 282 Ga. App. 163, 638 S.E.2d 760 (2006).

Intention of parties.

- Crucial test to determine whether deed conveys title to, or creates an easement in, land is the intention of the parties, which is determined by looking to the whole deed, and not merely upon disjointed parts of the deed; the recitals in the deed, the contract, the subject matter, the object, purpose, and nature of restrictions or limitations, and the attendant facts and circumstances of the parties at the time of making the deed are to be considered. Rogers v. Pitchford, 181 Ga. 845, 184 S.E. 623 (1936).

Livery of seisin is no longer necessary in this state. Gresham v. Webb, 29 Ga. 320 (1859).

Valid and binding deed.

- Limited warranty deed signed by the seller, which contained a description of two parcels of property, was valid and binding between the parties and the seller's failure to read the deed did not affect the conveyance of title as: (1) the seller signed the deed without reading the deed; (2) the seller's signature was notarized; (3) the deed was delivered to the buyer; and (4) there was no allegation that the seller could not read or that the buyer defrauded the seller or otherwise prevented the seller from reading the deed before the seller signed the deed. Z & Y Corp. v. Indore C. Stores, Inc., 282 Ga. App. 163, 638 S.E.2d 760 (2006).

Deed not recorded if not executed in manner prescribed.

- Penalty for failure to execute the deed in the manner prescribed by law is a refusal to admit the deed to record. Hoover v. Mobley, 198 Ga. 68, 31 S.E.2d 9 (1944).

Deed not executed in precisely the manner prescribed in O.C.G.A. § 44-5-30 is not properly recordable and therefore does not give constructive notice to all the world. Duncan v. Ball, 172 Ga. App. 750, 324 S.E.2d 477 (1984).

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).

Bankruptcy impact on improperly recorded deed.

- Chapter 7 discharge was not barred by 11 U.S.C. § 727(a)(2). The quitclaim deed by which the debtor transferred the debtor's interest in the marital residence to the debtor's spouse was valid under O.C.G.A. § 44-5-30 despite having been recorded in the wrong county, and the transfer did not occur within a year of the bankruptcy filing. Marvin Hewatt Enters. v. Kyu Sup Mun (In re Kyu Sup Mun), 458 Bankr. 628 (Bankr. N.D. Ga. 2011).

Cited in Sutton v. Aiken, 62 Ga. 733 (1879); Sterling v. Park, 129 Ga. 309, 58 S.E. 828, 121 Am. St. R. 224, 13 L.R.A. (n.s.) 298, 12 Ann. Cas. 201 (1907); Morehead v. Allen, 131 Ga. 807, 63 S.E. 507 (1909); Thrower v. Baker, 144 Ga. 372, 87 S.E. 301 (1915); Coles v. Mozley, 148 Ga. 21, 95 S.E. 963 (1918); Gammage v. Perry, 29 Ga. App. 427, 116 S.E. 126 (1923); Newsom v. Reynolds Chevrolet Co., 43 Ga. App. 376, 158 S.E. 763 (1931); Parker v. Wellons, 43 Ga. App. 721, 160 S.E. 109 (1931); Carder v. Arundel Mtg. Co., 47 Ga. App. 309, 170 S.E. 312 (1933); Charles Broadway Rouss, Inc. v. First Nat'l Bank, 180 Ga. 244, 178 S.E. 732 (1935); Lovett v. H.C. Arnall Merchandise Co., 182 Ga. 356, 185 S.E. 315 (1936); Armour Fertilizer Works v. Maxwell, 186 Ga. 801, 199 S.E. 120 (1938); First Nat'l Bank v. Harmon, 186 Ga. 847, 199 S.E. 223 (1938); Trustees of Jesse Parker Williams Hosp. v. Nisbet, 189 Ga. 807, 7 S.E.2d 737 (1940); Atkinson v. England, 194 Ga. 854, 22 S.E.2d 798 (1942); Avary v. Avary, 202 Ga. 22, 41 S.E.2d 314 (1947); Warwick v. Ocean Pond Fishing Club, 206 Ga. 680, 58 S.E.2d 383 (1950); Dodson v. Phagan, 227 Ga. 480, 181 S.E.2d 366 (1971); Top Quality Homes, Inc. v. Jackson, 231 Ga. 844, 204 S.E.2d 600 (1974); Dawson v. Keitt, 232 Ga. 10, 205 S.E.2d 309 (1974); Smith v. Smith, 145 Ga. App. 816, 244 S.E.2d 917 (1978); Moister v. Citizens Trust Bank (In re Truitt), 11 Bankr. 15 (Bankr. N.D. Ga. 1981); Management Assistance, Inc. v. Computer Dimensions, Inc., 546 F. Supp. 666 (N.D. Ga. 1982); Barkley v. National Sec. Fire & Cas. Co., 170 Ga. App. 17, 315 S.E.2d 923 (1984); Gay v. First Nat'l Bank, 184 Ga. App. 340, 361 S.E.2d 492 (1987); Sewell v. OK Oil, Inc., 203 Ga. App. 701, 417 S.E.2d 408 (1992); Hopkins v. Virginia Highland Assocs., 247 Ga. App. 243, 541 S.E.2d 386 (2000); Jackson v. Tolliver, 277 Ga. 58, 586 S.E.2d 321 (2003).

Sale of standing timber.

- Since standing timber is realty, the sale of standing timber must be in writing. Foy v. Scott, 197 Ga. 138, 28 S.E.2d 107 (1943).

Grantor's signature made by another.

- Signature of a grantor to a deed made by another in the grantor's presence and at the grantor's request is a valid execution of the instrument and would bind the grantor, especially when the deed was delivered. Guthrie v. Gaskins, 171 Ga. 303, 155 S.E. 185 (1930).

If grantor's name and mark appear in instrument, section complied with.

- Under this statute, the signature, or mark of one unable to make a signature need not be at the end of the instrument, nor need the name and the mark be in immediate proximity to each other. If, in the body of the instrument, the name of the grantor and the grantor's mark appear and the latter is made for the purpose of adopting the instrument as the grantor's act, this statute will be sufficiently complied with. Horton v. Murden, 117 Ga. 72, 43 S.E. 786 (1903) (see O.C.G.A. § 44-5-30).

Inquiry notice established following signature on waiver.

- Even though recorded, an unsigned security deed did not provide constructive notice to a bona fide purchaser under O.C.G.A. §§ 44-5-30 and44-14-33 as in effect in 2014 when the security deed was recorded. However, the security deed referenced and incorporated a waiver, which was properly executed and attested, and the waiver referenced and incorporated the security deed and, thus, the security deed and waiver were effective under Georgia law to provide inquiry notice to a subsequent purchaser and, accordingly, the trustee could not avoid the defendant's interest because the trustee did not qualify as a bona fide purchaser of real property. Kelley v. USAA Fed. Sav. Bank (In re Jones), 580 Bankr. 916 (Bankr. M.D. Ga. 2017).

No contract formed when no signature.

- With respect to objections to debtor's motion to sell property free and clear of liens and other interests, one objector's claimed easement interest failed because no contract was ever formed, it was not signed by both makers of document, and it was not attested by a second witness as required by Georgia law, and another objector who relied on a sales contract encountered the same problem of failing to comply with formalities, including two witnesses. In re Flyboy Aviation Props., LLC, 501 Bankr. 828 (Bankr. N.D. Ga. 2013).

Unattested deed not void.

- Phrase "a deed to lands must be in writing, signed by the maker, attested by at least two witnesses" is a statement of a requirement of law necessary to be met in order to entitle a deed to record, and does not declare that, unless so attested, a deed is void. Hoover v. Mobley, 198 Ga. 68, 31 S.E.2d 9 (1944).

Unattested deed valid as between parties.

- As between the parties, a deed is valid though attested by but one witness. Downs v. Yonge, 17 Ga. 295 (1855); Lowe v. Allen, 68 Ga. 225 (1881).

Deed without witnesses is legal and binding between the parties thereto, and those claiming under the parties as mere volunteers. Citizens' Bank v. Taylor, 169 Ga. 203, 149 S.E. 861 (1929); Hoover v. Mobley, 198 Ga. 68, 31 S.E.2d 9 (1944).

It has been held that, as between the two parties, a deed is valid, though attested by but one witness. But the requirement as to two witnesses is to be taken to apply to a "perfect deed," which on recordation will be constructive notice to all the world. Worley v. Planters' Cotton Oil Co., 180 Ga. 81, 178 S.E. 289 (1935).

Although a deed transferring the Chapter 7 debtor's interest in an office building to the debtor's spouse lacked a witness and was thus defective under Georgia law, the transfer remained valid as between the debtor and the spouse. Thus, the debtor's failure to schedule an interest in the office building was not a false oath for purposes of denying the debtor's discharge. In re Knight, 574 Bankr. 800 (Bankr. N.D. Ga. 2017).

Unattested deed cannot constitute constructive notice.

- Registry of a deed not attested, or not proved or acknowledged according to law, is not constructive notice to a subsequent purchaser. Citizens' Bank v. Taylor, 169 Ga. 203, 149 S.E. 861 (1929).

Deed not properly attested or acknowledged, as required by statute, is ineligible for recording and, even if recorded, does not constitute constructive notice. Higdon v. Gates, 238 Ga. 105, 231 S.E.2d 345 (1976).

Pecuniarily interested party is disqualified from witnessing a deed's execution. Hoover v. Mobley, 198 Ga. 68, 31 S.E.2d 9 (1944).

Pecuniary interest must exist at time of execution.

- To render ineffective for that purpose a recorded instrument relied on as "constructive notice" to the public because an official witness was pecuniarily interested, such pecuniary interest must be shown to have existed at the time of the execution of the instrument. Worley v. Planters' Cotton Oil Co., 180 Ga. 81, 178 S.E. 289 (1935).

Attesting clause reciting delivery raises presumption deed delivered.

- When a deed was duly attested by two witnesses, one of whom was an official so authorized by law, and the attesting clause recited delivery, this was sufficient to raise a prima facie presumption that the deed was delivered. Grice v. Grice, 197 Ga. 686, 30 S.E.2d 183 (1944).

Loan modification agreement does not require attestation.

- There was no merit to a Chapter 13 debtor's claim that the debtor was allowed under 11 U.S.C. § 506 to treat $31,900 in deferred principal that was addressed in a loan modification agreement the debtor signed as unsecured debt because the agreement created a junior lien on the debtor's residence that was unsecured; the debtor's logic was flawed by several mistaken assumptions about Georgia law, including the debtor's belief that the loan modification agreement had to be attested or acknowledged pursuant to O.C.G.A. § 44-5-30, and because a security deed the debtor signed secured both deferred and non-deferred principal of a bank's secured claim, the entire balance was protected from modification by 11 U.S.C. § 1322. Mendez v. Wells Fargo Home Mortg. (In re Mendez), Bankr. (Bankr. N.D. Ga. Jan. 6, 2016).

Agreement properly construed as valid deed.

- Trial court did not err by determining that the original Redemption Agreement could be construed as a valid deed because O.C.G.A. §§ 44-2-15 and44-5-30 do not provide that unless so attested, a deed is void and O.C.G.A. § 44-5-33 provides that no prescribed form is essential to the validity of a deed to lands. Bagwell v. Trammel, 297 Ga. 873, 778 S.E.2d 173 (2015).

Delivery of deed essential to validity.

- Delivery to the grantee named in a deed to land is essential to the deed's validity. Daniel v. Stinson, 179 Ga. 701, 177 S.E. 590 (1934), later appeal, 193 Ga. 844, 20 S.E.2d 257 (1942).

Delivery of a deed to land is essential to the deed's validity as a conveyance. Calhoun v. Dowdy, 207 Ga. 584, 63 S.E.2d 373 (1951).

Delivery of a deed conveying realty is essential to the deed's validity. Kirby v. Johnson, 208 Ga. 190, 65 S.E.2d 811 (1951).

Trial court did not err in denying the niece's motion for directed verdict under O.C.G.A. § 9-11-50(a) as some evidence supported the finding that the deed naming the niece as grantee was never delivered to the niece as required under O.C.G.A. § 44-5-30; there was evidence that the original deed was found in the decedent's safe deposit box and that the key to the box had been in the decedent's control when the decedent died. Robinson v. Williams, 280 Ga. 877, 635 S.E.2d 120 (2006).

Grantor defrauding creditors may question deed's delivery and validity.

- Doctrine that the grantor in a deed made for the purpose of hindering, delaying, or defrauding the grantor's creditors, or one claiming in the grantor's right, cannot be heard to question the validity of such deed does not apply if the deed is not in fact delivered. Fuller v. Fuller, 211 Ga. 201, 84 S.E.2d 665 (1954).

As to what constitutes delivery, see Puett v. Strickland, 144 Ga. 193, 86 S.E. 547 (1915).

Enforcement of foreclosure provision barred by lack of delivery.

- Trial court did not err in finding that the foreclosure provisions of the deed to secure debt could not be enforced because the deed had never been delivered and recorded. Jones v. Phillips, 227 Ga. App. 94, 488 S.E.2d 692 (1997).

Foreclosure sale.

- Principle that, for title to real property to pass, a deed must be delivered, applies in the case of a foreclosure sale. Gooden v. Buffalo Sav. Bank, 21 Bankr. 456 (Bankr. N.D. Ga. 1982).

When delivery and acceptance of deed complete.

- Delivery of a deed is complete as against the maker at the moment when the deed is in the hands or in the power of a grantee or donee or some one for the grantee, with the consent of the grantor and with the intention that the grantee shall hold the deed as a muniment of title. National Fire Ins. Co. v. Thompson, 51 Ga. App. 625, 181 S.E. 101 (1935); First Nat'l Bank v. Kelly, 190 Ga. 603, 10 S.E.2d 66 (1940); Giuffrida v. Knight, 210 Ga. 128, 78 S.E.2d 29 (1953).

Delivery of a deed is complete as against the maker only when the deed is in the hands of or in the power of the grantee or some one authorized to act for the grantee, with the consent of the grantor, and with the intention that the grantee hold the deed as a muniment of title. Keesee v. Collum, 208 Ga. 382, 67 S.E.2d 120 (1951).

Delivery may be to third person.

- Deed by a father to his minor child may be delivered by the grantor to a third person for the child. First Nat'l Bank v. Kelly, 190 Ga. 603, 10 S.E.2d 66 (1940).

Delivery of a deed to another, to be delivered on certain conditions to the grantee, was in escrow under former Code 1933, § 29-105 (see O.C.G.A. § 44-5-42). But the second delivery by the escrowee to the grantee, and not the first by the grantor to the escrowee, was the one rendering the conveyance valid and complete and under which title past. Foy v. Scott, 197 Ga. 138, 28 S.E.2d 107 (1943).

While it is true that to be valid a deed must be delivered, such delivery does not have to be to the grantee personally. The deed may be received by another authorized to do so by the grantee or may be received by a third person whose actions are later ratified by the grantee. Barrett v. Simmons, 235 Ga. 600, 221 S.E.2d 25 (1975).

Grantor's death revokes agency.

- Deed delivered to a third person, as agent of the grantor, to be kept by the third person and delivered to the grantees after the grantor's death, was not a present deed of the grantor, and the death of the grantor revoked the agency, thus preventing effectual delivery. Cooper v. Littleton, 197 Ga. 381, 29 S.E.2d 606 (1944).

Sufficient acceptance and control of deed by debtor.

- Bankruptcy debtor fraudulently transferred an interest of the debtor in a parent's residence since the parent delivered the deed of the property to the debtor by recording the deed and notifying the debtor and the debtor accepted the deed by asserting control over the property by transferring the debtor's interest to a sibling. Howell v. Trawick (In re Norton), Bankr. (Bankr. N.D. Ga. Aug. 15, 2014).

Intent of grantor to reserve locus penitentiae.

- When one executes a deed, the true test of delivery of a deed of conveyance is whether or not the grantor intended to reserve to oneself the locus penitentiae. Giuffrida v. Knight, 210 Ga. 128, 78 S.E.2d 29 (1953).

Intent gathered from circumstances under which delivery made.

- Question of the completed and effectual delivery of a deed is one of the intent of the grantor, and this intent to irretrievably part with control of the deed is to be gathered from the circumstances under which the delivery was made. Stinson v. Daniel, 193 Ga. 844, 20 S.E.2d 257 (1942).

Leaving the deed in the trunk of a car that was left to the grantee.

- Father's unrecorded 2004 deed of a family home place to one of his sons was ineffective because it was not delivered to the son as required by O.C.G.A. § 44-5-30, but was placed in the trunk of the father's car until the father's death in 2009, when he left the car to his son. Johnson v. Johnson, 327 Ga. App. 604, 760 S.E.2d 618 (2014).

Delivery to third person, handed to grantee after grantor's death, effectual.

- While it is true that a delivery, to be effectual, must be made during the lifetime of the grantor, it is not here ruled that the delivery would be ineffectual if the paper did not actually reach the grantee until after the grantor's death, provided the latter in the grantor's lifetime had actually delivered the paper to a third person for the purpose of having the paper handed to the actual grantee, though this latter act was not consummated until after the grantor's death. Stinson v. Daniel, 193 Ga. 844, 20 S.E.2d 257 (1942).

No presumption of delivery found.

- There was no presumption that a deed was delivered merely because of the deed's execution before two witnesses, one of whom was an officer authorized to attest deeds, since the deed was never recorded during the grantor's lifetime, was found attached to the grantor's will, which was executed the same day, among the grantor's papers after the grantor's death and in a locked box to which no one but the grantor had access, and where the grantor retained possession of the premises and treated the premises as the grantor's own. Plowden v. Plowden, 52 Ga. App. 741, 184 S.E. 343 (1935).

When deed executed and recorded, delivery presumed.

- When a deed properly executed and recorded purports on the deed's face to have been delivered, delivery will be presumed. Shelton v. Edenfield, 148 Ga. 128, 96 S.E. 3 (1918); Garnett v. Royal Ins. Co., 23 Ga. App. 432, 98 S.E. 363 (1919).

When the deed is properly executed, recited delivery, and an entry of record appears, in the absence of rebutting evidence, these facts are sufficient to prove delivery of the deed. Daniel v. Stinson, 179 Ga. 701, 177 S.E. 590 (1934), later appeal, 193 Ga. 844, 20 S.E.2d 257 (1942).

When a deed introduced in evidence showed that the deed had been recorded, this raised a prima facie presumption of delivery. Grice v. Grice, 197 Ga. 686, 30 S.E.2d 183 (1944).

Fact that deeds to secure debt were duly witnessed, recited delivery, and were properly recorded raised a prima facie presumption of delivery. Fuller v. Fuller, 213 Ga. 103, 97 S.E.2d 306 (1957).

Presumption of delivery rebuttable.

- Act of registering a deed does not amount necessarily to a delivery. When placed on record by the grantor or by the grantor's direction, it is only prima facie evidence of delivery, and it may be explained or rebutted. Presumption of delivery is not conclusive as between the parties to the instrument. Daniel v. Stinson, 179 Ga. 701, 177 S.E. 590 (1934), later appeal, 193 Ga. 844, 20 S.E.2d 257 (1942).

Formal execution of the deed raises a prima facie presumption that the deed was delivered. This presumption is rebuttable. Stinson v. Daniel, 193 Ga. 844, 20 S.E.2d 257 (1942).

Though the grantor by reserving a life interest in the property raised a prima facie presumption of delivery, such presumption, like the presumption from the execution of a deed or the record thereof, is one that may be rebutted. Keesee v. Collum, 208 Ga. 382, 67 S.E.2d 120 (1951).

Though a presumption of delivery arises from the due attestation and registration of a deed, such presumption may be rebutted by proof that the deed was never delivered. Fuller v. Fuller, 211 Ga. 201, 84 S.E.2d 665 (1954).

When evidence raises conflict, jury decides issue.

- Presumptions in favor of the delivery of a deed arising from the deed's possession by the grantee, the deed's due recordation, the deed's attestation by an officer, and the possession of the premises conveyed under the deed are evidence of delivery, but, since these presumptions are rebuttable ones, the evidence of an unimpeached witness that the deed was not delivered raises a conflict between such presumptive evidence of delivery and such direct evidence of nondelivery, which can only be decided by the jury. National Fire Ins. Co. v. Thompson, 51 Ga. App. 625, 181 S.E. 101 (1935).

While the due registration of a deed is presumptive evidence of the deed's delivery, this presumption is rebuttable, and when evidence is introduced which would authorize the jury to find that this presumption has been rebutted and that the deed has not been delivered, an issue of fact is thereby made and it is the sole province of the jury to decide that issue. Allen v. Bemis, 193 Ga. 556, 19 S.E.2d 516 (1942).

Whether deed delivered question for jury.

- Whether the facts constitute a delivery of the deed is a question of law; whether such facts exist is a question for the jury. Stinson v. Daniel, 193 Ga. 844, 20 S.E.2d 257 (1942).

Undisputed facts demand directed verdict.

- Whether a deed has in fact been delivered is a question for the jury, unless the proof is so complete and undisputed that a verdict is demanded thereunder for one or the other party. National Fire Ins. Co. v. Thompson, 51 Ga. App. 625, 181 S.E. 101 (1935).

Whether the facts constitute a delivery of a deed is a question of law; whether such facts exist is a question for the jury. When the undisputed facts are insufficient to constitute a delivery of the deed, the court need not submit the issue of delivery to the jury. Giuffrida v. Knight, 210 Ga. 128, 78 S.E.2d 29 (1953).

Grantee's act may constitute ratification of delivery.

- Evidence demanded a finding that the grantee had exercised acts of ownership over the property and had ratified the delivery of the deed thereto by the grantee's execution of an affidavit and notice endeavoring to stop a levy on the property. McKenzie v. Alston, 58 Ga. App. 849, 200 S.E. 518 (1938).

Evidence sufficient to support finding of nondelivery.

- When it was shown that a deed was made, and that the grantor said that the land belonged to the grantee, but it was proved that the deed never was recorded, and was found by the grantee among the papers of the grantor after the grantor's death, there was no sufficient evidence of delivery, and a verdict finding against a title set up under such a deed was correct. Hall v. Metropolitan Life Ins. Co., 192 Ga. 805, 16 S.E.2d 576 (1941).

Evidence that, though the grantor, three days before the grantor's death, intended to give the grantor's four children equal parts of a cash fund and to deliver separate deeds to three of the children, but before the grantor had done so the grantor became ill, saying, "I will fix the rest tomorrow, I have got to lay down, put them all up," and pursuant to this direction the cash and deeds were returned to the grantor's trunk, authorized the jury, under the circumstances, to find that the maker did not intend to surrender dominion over the deed. Keesee v. Collum, 208 Ga. 382, 67 S.E.2d 120 (1951).

Good consideration sufficient.

- Valuable consideration is not necessarily required; a good consideration is sufficient. Byrd v. Byrd, 44 Ga. 258 (1871); Boyd v. Sanders, 148 Ga. 839, 98 S.E. 490 (1919).

Deed based upon no consideration stands as a voluntary conveyance. Finch v. Woods, 113 Ga. 996, 39 S.E. 418 (1901); American Ins. Co. v. Bagley, 6 Ga. App. 736, 65 S.E. 787 (1909).

Failure of consideration.

- Seal raises presumption of consideration at the time the contract was entered into, but not that the consideration has not since failed either wholly or in part, and while want of consideration cannot be pleaded, failure may. Parrott v. Baker, 82 Ga. 364, 9 S.E. 1068 (1889); Sivell v. Hogan, 119 Ga. 167, 46 S.E. 67 (1903).

Delivery of deed to father, in consideration of affection, evidence of delivery to infant son.

- When a grantor executes and delivers to the father of an infant of tender years, in consideration of love and affection, a deed conveying to the infant son of the father title to a described tract of land, delivery to the father and his possession of the deed is evidence of delivery to the infant. Montgomery v. Reeves, 167 Ga. 623, 146 S.E. 311 (1929).

Promise to pay constitutes consideration and a failure to pay the consideration promised, although it constitutes a breach, does not render the conveyance invalid for lack of consideration. Barrett v. Simmons, 235 Ga. 600, 221 S.E.2d 25 (1975).

Failure to pay creates liability.

- Fact that the consideration is not actually paid does not render void the conveyance, but creates a liability upon the purchaser, which may be enforced in an action at law. Morris v. Johnson, 219 Ga. 81, 132 S.E.2d 45 (1963).

Debt liability is valuable consideration.

- When a married woman entitled to certain undistributed funds from her deceased father's estate, and having on hand certain money derived from the same source, died leaving her husband and their minor children as her only heirs at law, and the husband became guardian of the persons and property of the children, and took possession of the money on hand and used the money individually, the father became individually liable to the children for their distributive shares of the money left by their mother; where, before the children attained majority, the father, having married again, executed, without a court order, a deed purporting to convey described realty to the children in payment of the debt, such liability was a valuable consideration for the deed. First Nat'l Bank v. Kelly, 190 Ga. 603, 10 S.E.2d 66 (1940).

Exchange of an undivided one-fifth interest for a life estate was a valuable consideration; and where a substantial part of the consideration has not failed, the grantor's remedy would not be cancellation, but an action for damages for the breach of partial failure of consideration. Cordell v. Cordell, 206 Ga. 214, 56 S.E.2d 251 (1949).

Statement as to consideration merely by way of recital.

- Ordinarily, if the statement in a deed as to a consideration is merely by way of recital, the actual consideration of the deed is subject to explanation. But if the consideration is referred to in the deed in such a way as to make it one of the terms or conditions of the contract, it cannot be varied by parol. This statement, in connection with the rule against permitting the terms of a written contract to be changed by parol, will serve to reconcile a number of rulings where evidence has been admitted to show what was the consideration of the deed or contract with others in which it has been rejected. As illustrations of cases of the first character mentioned, see Horn v. Ross & Leitch, 20 Ga. 210, 65 Am. Dec. 621 (1856); Burke v. Napier, 106 Ga. 327, 32 S.E. 134 (1898); Stone v. Minter, 111 Ga. 45, 36 S.E. 321, 50 L.R.A. 356 (1900); Martin v. White, 115 Ga. 866, 42 S.E. 279 (1902); Goette v. Sutton, 128 Ga. 179, 57 S.E. 308 (1907); Southern Bell Tel. & Tel. Co. v. Smith, 129 Ga. 558, 59 S.E. 215 (1907); Pavlovski v. Klassing, 134 Ga. 704, 68 S.E. 511 (1910). For cases of the latter character, see Atlas Tack Co. v. Exchange Bank, 111 Ga. 703, 36 S.E. 939 (1900); Wellmaker v. Wheatley, 123 Ga. 201, 51 S.E. 436 (1905); Louisville & N.R.R. v. Holland, 132 Ga. 173, 63 S.E. 898 (1909); Louisville & N.R.R. v. Willbanks, 133 Ga. 15, 65 S.E. 86, 24 L.R.A. (n.s.) 374, 17 Ann. Cas. 860 (1909); Coldwell Co. v. Cowart, 138 Ga. 233, 75 S.E. 425 (1912). See also Young v. Young, 150 Ga. 515, 104 S.E. 149 (1920); Sikes v. Sikes, 162 Ga. 302, 133 S.E. 239 (1926).

If the statement in a deed as to a consideration is merely by way of recital, the actual consideration of the deed is subject to explanation; but if the consideration is referred to in the deed in such a way as to make it one of the terms or conditions of the contract, it cannot be varied by parol. Shapiro v. Steinberg, 179 Ga. 18, 175 S.E. 1 (1934).

As between the parties to the contract, the consideration of a deed can generally be inquired into whenever the principles of justice require it, if the consideration is expressed in the instrument merely by way of recital, and not in such a manner as to make it one of the terms and conditions of the deed, and when the consideration is expressed only by way of recital, it is permissible to show by parol testimony that the true consideration is in fact different from that expressed in the deed. Stonecypher v. Georgia Power Co., 183 Ga. 498, 189 S.E. 13 (1936).

Consideration of a deed when stated merely by recital may always be inquired into when the principles of justice require it. Guffin v. Kelly, 191 Ga. 880, 14 S.E.2d 50 (1941).

When the consideration is expressed merely by way of recital, it is permissible to show by parol evidence that the real consideration is in fact different from that expressed in the instrument. McCann v. Glynn Lumber Co., 199 Ga. 669, 34 S.E.2d 839 (1945).

When the consideration in a deed is expressed merely by way of recital, it is permissible to show by parol testimony that the true consideration is in fact different from that expressed in the instrument, but when the consideration is so expressed as to make it one of the terms and conditions of the deed, one of the parties thereto cannot, under the guise of inquiring into its consideration, alter the terms of the instrument. Taylor v. Ross, 74 Ga. App. 750, 41 S.E.2d 330 (1947).

When expressed only by way of recital, parol evidence is admissible to show that the true consideration of the deed is in fact different from the one stated merely by way of recital. However, one of the parties to a deed cannot, under the guise of inquiring into the deed's consideration, engraft upon the instrument a new condition or covenant which imposes an additional affirmative obligation upon the other party. Awtrey v. Awtrey, 225 Ga. 666, 171 S.E.2d 126 (1969).

Parol evidence admissible when consideration in dispute.

- When a deed on the deed's face does not show itself to be complete, certain, and unambiguous, parol evidence is admissible to show the actual consideration for the deed, and this is true when the consideration is in dispute, as this may always be inquired into when the principles of justice require it. Knight v. Munday, 152 Ga. App. 406, 263 S.E.2d 188 (1979).

If consideration is not stated in deed, parol evidence may be received to prove the consideration. Shapiro v. Steinberg, 179 Ga. 18, 175 S.E. 1 (1934).

Inquiry by fraudulent grantor.

- Principles of justice neither require nor allow an inquiry at the instance of fraudulent grantor. Parrott v. Baker, 82 Ga. 364, 9 S.E. 1068 (1889).

Party cannot vary expressly stated consideration.

- Party may not, under the guise of inquiring into the consideration of a deed, contradict or vary by parol evidence the consideration expressly stated in the deed. Zorn v. Robertson, 237 Ga. 395, 228 S.E.2d 804 (1976).

Parol evidence of different consideration not admissible.

- One of the parties to a deed cannot, under the guise of inquiring into the deed's consideration, alter the terms of the instrument, and when proof of a consideration different from the one expressed would have the effect of altering the terms and conditions imposed by the deed, it is not permissible to set up by parol another and different consideration for the purpose of showing a failure of the latter. Stonecypher v. Georgia Power Co., 183 Ga. 498, 189 S.E. 13 (1936).

If an instrument states the consideration, not merely by way of recital, but in such a way as to constitute it a part of the terms and conditions of the agreement itself, then it is not permissible, even under the guise of inquiring into the consideration, to set up a new and different consideration, and in this way to incidentally modify the terms and conditions of the written contract, but this rule does not have application where a total lack or a total failure of consideration is shown in which event the instrument can be attacked irrespectively of how or in what manner the consideration may be expressed. Pittman v. Pittman, 196 Ga. 397, 26 S.E.2d 764 (1943).

Party may not vary affirmative obligations.

- Suit for damages for breach of an oral agreement cannot be maintained when, in order to establish such an agreement, it is necessary to vary the terms of a deed by imposing additional affirmative obligations upon one of the parties to the instrument. Awtrey v. Awtrey, 225 Ga. 666, 171 S.E.2d 126 (1969).

Although deed purports to have valuable consideration, the deed may be shown to be voluntary only. Roop Grocery Co. v. Gentry, 195 Ga. 736, 25 S.E.2d 705 (1943).

Parol evidence showing voluntary deed of gift.

- When a deed from an insured to a third person is relied on as showing that the insured was not sole owner of the property at the time of the fire, it may be shown by parol to be a voluntary deed of gift, notwithstanding a recital in the deed of a monetary consideration. Pooser v. Norwich Union Fire Ins. Soc'y, Ltd., 51 Ga. App. 962, 182 S.E. 44 (1935).

Whether a deed which expresses as a consideration love and affection and a small sum of money is a voluntary conveyance depends upon the intention of the parties, and this intention is to be ascertained by an inquiry into all the facts and circumstances at the time of the deed's execution, which will throw light upon the question as to whether the deed was executed as the consummation of a sale or as the evidence of a gift. Mercantile Nat'l Bank v. Aldridge, 233 Ga. 318, 210 S.E.2d 791 (1974).

Statute of frauds is not violated by showing that consideration is performance of parol agreement. Duggan v. Dennard, 171 Ga. 622, 156 S.E. 315 (1930).

Evidence on positive instructions and statements of deed of maker properly considered.

- When the evidence was not as material to the intention of the maker as the evidence was to the positive instructions and statements of the maker of the deed to incorporate certain provisions therein, the evidence may be properly considered. Ward v. Ward, 176 Ga. 849, 169 S.E. 120 (1933).

Allegations sufficient to show necessity for inquiry.

- Allegations of a petition seeking payment of the balance due on a note made by the seller of a business which the defendant-purchaser assumed and agreed to pay when defendant purchased the assets of the business were sufficient to show the necessity for an inquiry into the consideration for the contract. Alexander v. Dinwiddie, 214 Ga. 441, 105 S.E.2d 451 (1958).

Subsequent parol agreement cannot make deed to secure particular debt security for other debts.

- It would be competent to introduce evidence to show that the actual consideration of a deed at the time of the deed's execution covered not only the securing of the debt then due but also the securing of future advances to be made. But if, when the deed was made, it was to secure a particular debt, it could not be made a security for other debts by a subsequent parol agreement. Hester v. Gairdner, 128 Ga. 531, 58 S.E. 165 (1907); Neal v. Neal, 153 Ga. 44, 111 S.E. 387 (1922).

When consideration not ambiguous, error to admit parol evidence to show parties' intention.

- Timber lease, as properly construed, granted the right to cut and remove all the timber of stated kinds and dimensions on the described tract of land, at and for a stipulated price per 1,000 feet, subject only to the expiration of the lease on a date therein fixed, and did not limit the amount of timber that might be so cut by recital of a certain consideration, and the judge erred in holding that the contract was ambiguous on the point at issue, and in admitting over appropriate objection parol evidence offered to show an intention of the parties that only a certain quantity of timber could be so cut and removed under the right granted. McCann v. Glynn Lumber Co., 199 Ga. 669, 34 S.E.2d 839 (1945).

Applicability to contract for sale of land.

- Same rule requiring definiteness of description in deed for land is applicable to a contract for the sale or purchase of land. Haygood v. Duncan, 204 Ga. 540, 50 S.E.2d 214 (1948).

Deed void for failure of description.

- Trial court did not err in granting summary judgment to siblings in the siblings' action to set aside a quitclaim deed that their father had made to their sister prior to the father's death as the deed did not meet the necessary formality requirements since the deed did not contain a description of the property that was purportedly transferred; the fact that a third page was attached which had a property description was not sufficient to satisfy the formality requirements as there was no reference in the body of the deed to an attachment, and the third page did not reference itself as an attachment or appendix to the deed. Field v. Mednikow, 279 Ga. App. 380, 631 S.E.2d 395 (2006).

When descriptions so indefinite that lands cannot be located, deed void.

- When the description in a deed is indefinite, and contains no descriptive terms by the use of which the lands intended to be conveyed can be definitely located and identified, such deed is fatally defective and void. Laurens County Bd. of Educ. v. Stanley, 187 Ga. 389, 200 S.E. 294 (1938), later appeal, 188 Ga. 581, 4 S.E.2d 164 (1939).

Deed purporting to convey land, which is so indefinite in description that the land is incapable of being located, is inoperative either as a conveyance of title or as color of title. Stanley v. Laurens County Bd. of Educ., 188 Ga. 581, 4 S.E.2d 164 (1939).

Deed furnishing key to land's identification not void.

- Deed to land will not be declared void for uncertainty of description, if the description is certain, or if the deed furnishes the key to the identification of the land intended to be conveyed by the grantor. Smith v. Federal Land Bank, 181 Ga. 1, 181 S.E. 149 (1935).

Deed is not void for the want of description if the deed furnishes the key to the identification of the land intended to be conveyed. Laurens County Bd. of Educ. v. Stanley, 187 Ga. 389, 200 S.E. 294 (1938), later appeal, 188 Ga. 581, 4 S.E.2d 164 (1939).

Deed is sufficient to pass title, and will not be declared void for uncertainty of description, if the descriptive averments contained therein are certain, or if the averments afford a key by which the land can be definitely located by the aid of extrinsic evidence. Gainesville M.R.R. v. Tyner, 204 Ga. 535, 50 S.E.2d 108 (1948); Smith v. Wilkinson, 208 Ga. 489, 67 S.E.2d 698 (1951).

Deed to land will not be declared void for uncertainty of description if the deed furnishes a key for the identification of the land intended to be conveyed. Sharpe v. Savannah River Lumber Corp., 211 Ga. 570, 87 S.E.2d 398 (1955), later appeal, 213 Ga. 72, 97 S.E.2d 303 (1957).

When deed admissible in evidence.

- When the description in a deed furnishes a key which, when aided by parol evidence, can fit the description, the deed is admissible in evidence. Dorsey v. Dorsey, 189 Ga. 662, 7 S.E.2d 273 (1940).

Key must locate boundaries at time of conveyance's execution.

- Insofar as the identity of the land attempted to be conveyed is concerned, the key must lead to the establishment and the location of the boundaries as of the time of the execution of the conveyance; a survey to be made in the future does not do so. Laurens County Bd. of Educ. v. Stanley, 187 Ga. 389, 200 S.E. 294 (1938), later appeal, 188 Ga. 581, 4 S.E.2d 164 (1939).

Key to location must be found in instrument itself.

- When a key is relied upon for descriptive purposes, either in a deed or in a contract for the sale of land, the key to be used for that purpose must be found in the instrument itself, and not elsewhere. Smith v. Wilkinson, 208 Ga. 489, 67 S.E.2d 698 (1951).

Deed under seal not binding when under unsealed power of attorney.

- Deed under seal is not binding on a grantor when signed by a person under an alleged power of attorney from the grantor, which power is itself not under seal. Pollard & Co. v. Gibbs, 55 Ga. 45 (1875); Lynch v. Poole, 138 Ga. 303, 75 S.E. 158 (1912); Neely & Co. v. Stevens, 138 Ga. 305, 75 S.E. 159 (1912); Henderson v. Howard, 147 Ga. 371, 94 S.E. 251 (1917).

Authority to fill in names in blanks left by grantor need not be under seal. Bowen v. Gaskins, 144 Ga. 1, 85 S.E. 1007 (1915).

Petition found to set out cause of action.

- It is essential to the validity of a deed that the deed be delivered, and a petition brought by the administrator seeking cancellation of the deed in which the deceased grantor had conveyed certain property, while reserving a life estate for the grantor, on the grounds that the deed had not been delivered by the grantor during the grantor's lifetime, set out a cause of action. Childs v. Mitchell, 204 Ga. 542, 50 S.E.2d 216 (1948).

Petition for the cancellation of a deed, alleging that a mother, the owner of described realty, executed a voluntary deed to her children giving the children a remainder interest, when in fact she intended to execute a will, and alleging that she has retained possession of the deed and continued in possession of the land since the deed's execution, is sufficient to set forth a cause of action. Kirby v. Johnson, 208 Ga. 190, 65 S.E.2d 811 (1951).

Petition seeking to cancel two security deeds, which alleged that the deeds were executed without any consideration, that the deeds, though recorded, had never been delivered to the grantee, and that the defendant had never had possession of the properties described in the deeds, stated a cause of action, though it was alleged in the petition that the grantor executed the deeds for the purpose of hindering, delaying, and defrauding the grantor's creditors. Fuller v. Fuller, 211 Ga. 201, 84 S.E.2d 665 (1954).

Deed made in consideration of promise to support grantor canceled where appears grantee insolvent.

- An absolute deed made in consideration of a promise by the grantee to support the grantor for life may be canceled by the superior court in the exercise of the court's equitable powers on a petition brought by the grantor for this purpose when it is made to appear that the grantee has breached the grantee's agreement and is insolvent, and this does not contravene the rule prevailing in this state that an absolute deed of conveyance will not, at the instance of the grantor, be canceled merely because of a breach by the grantee of a promise made by the grantee, in consideration of which the deed was executed. Schneider v. Smith, 189 Ga. 704, 7 S.E.2d 76 (1940).

Deed executed by one non compos mentis, but not adjudged insane, is voidable, and can be so declared at the instance of one's heirs in a suit brought for that purpose. Simpson v. Simpson, 180 Ga. 645, 180 S.E. 126 (1935).

Deed found void for indefiniteness.

- Tax deed purporting to convey a designated number of acres "more or less," which did not purport to designate the eastern boundary, was void for indefiniteness in the description. Holloway v. Key, 188 Ga. 423, 4 S.E.2d 167 (1939).

Deed found not void for failure of description.

- When a deed headed, "State of Georgia, ________ County," named the grantor as a resident of that county, and described the land by giving the lot number, the district, and the names of the adjoining landowners on all sides, recited that the described land was "known as [grantor] home place," and was recorded in the deed records of the county, it was not void for the failure of the description to state the county and the state in which the land was located. Dorsey v. Dorsey, 189 Ga. 662, 7 S.E.2d 273 (1940).

Parties.

- Grantor and grantee are indispensable parties in an action for cancellation of a deed. Tabernacle Baptist Church v. Dorsey, 247 Ga. 675, 278 S.E.2d 378 (1981).

Am. Jur. 2d.

- 23 Am. Jur. 2d, Deeds, § 87 et seq. 72 Am. Jur. 2d, Statute of Frauds, § 221.

C.J.S.

- 26A C.J.S., Deeds, § 19 et seq.

ALR.

- Description with reference to highway as carrying title to center or side of highway, 2 A.L.R. 6; 49 A.L.R.2d 982.

Deposit of deed in mail as a delivery, 5 A.L.R. 1664.

Validity and effect of deed to "heirs" of living person, 22 A.L.R. 713.

Severance of title or rights to oil and gas in place from title to surface, 29 A.L.R. 586; 146 A.L.R. 880.

Reservation of vendor's lien as preventing severance of estate in mineral from estate in surface by deed otherwise having that effect, 29 A.L.R. 618.

Sufficiency of certificate of acknowledgment, 29 A.L.R. 919.

Conclusiveness of manual delivery of deed to grantee as an effective legal delivery, 56 A.L.R. 746; 141 A.L.R. 305.

Marketable title, 57 A.L.R. 1253; 81 A.L.R.2d 1020.

Acknowledgment or oath over telephone, 58 A.L.R. 604.

Conveyance in consideration of support as creating lien or charge upon the land conveyed, 64 A.L.R. 1250.

Execution of deed in respective or fiduciary capacity as estoppel of one in his individual capacity, 64 A.L.R. 1556.

Value of property as factor in determining whether deed intended as mortgage, 90 A.L.R. 953; 89 A.L.R.2d 1040.

Undelivered deed or escrow, pursuant to oral contract, as satisfying Statute of Frauds, 100 A.L.R. 196.

Presumption of delivery where deed is given by grantor to third person or comes into possession of grantee through third person, 124 A.L.R. 462.

Delivery of a deed without manual transfer or record, 129 A.L.R. 11; 87 A.L.R.2d 787.

Delivery of deed as conditioned on obtaining signature of another as grantor, 140 A.L.R. 265.

Death, or extinction of corporate existence, of grantee, or one of the grantees, prior to execution of deed, 148 A.L.R. 252.

Delivery of deed or mortgage by one or more but not all of the grantors or mortgagors, 162 A.L.R. 892.

Validity and effect of deed executed in blank as to name of grantee, 175 A.L.R. 1294.

Effect of supplying of description of property conveyed after manual delivery of deed or mortgage, 11 A.L.R.2d 1372.

Knowledge or notice of inadequacy of consideration for conveyance in chain of title as affecting bona fide status of purchaser, 42 A.L.R.2d 1088.

Conveyance of real property to mortgagee or lienholder as constituting "sale or exchange" rendering owner liable for commissions to broker having exclusive agency or exclusive right to sell, 46 A.L.R.2d 1116.

Presumption of consideration from revenue stamps on deed, 51 A.L.R.2d 1004.

What constitutes acceptance of deed by grantee, 74 A.L.R.2d 992.

Description with reference to highway as carrying title to center or side of highway, 49 A.L.R.2d 982.

Party walls and party-wall agreements as affecting marketability of title, 81 A.L.R.2d 1020.

Sufficiency of delivery of deed where grantor retains, or recovers, physical possession, 87 A.L.R.2d 787.

Value of property as factor in determining whether deed was intended as mortgage, 89 A.L.R.2d 1040.

What constitutes a "structure" within restrictive covenant, 75 A.L.R.3d 1095.