O.C.G.A. § 44-5-42 (2019)

Annotations

Law reviews. - For article surveying recent legislative and judicial developments in Georgia’s real property laws, see 31 Mercer L. Rev. 187 (1979).

For note discussing problems with profits generated by escrow account, and proposing federal legislative reform, see 10 Ga. St. B.J. 618 (1974).

JUDICIAL DECISIONS Section must be construed with other sections on delivery. - While this statute provides that possession of the deeds by the grantee is presumptive proof of the deed’s delivery, which may be rebutted, it is silent both as to character of the evidence by which this is to be done, and circumstances which will overcome the presumption. This statute, therefore, must be construed with other portions of the Code having relation to the subject. Lewis v. Board of Comm’rs, 70 Ga. 486 (1883); Mays v. Shields, 117 Ga. 814, 45 S.E. 68 (1903) (see O.C.G.A. § 44-5-42). Delivery of deed is essential to validity and is complete only when deed is accepted. The delivery may be actual or constructive. The record of a properly attested deed purporting on the deed’s face to have been delivered is prima facie or presumptive evidence of delivery which, of course, is rebuttable. Domestic Loans of Wash., Inc. v. Wilder, 113 Ga. App. 803, 149 S.E.2d 717 (1966). Deed delivered to third person to be delivered to grantee constitutes escrow. - An escrow, ex vi termini, is a deed delivered to some third person, to be delivered by the third person to the grantee upon performance of some precedent condition by the grantee or another, or the happening of some event. If delivered to the grantee or the grantee’s agent, the delivery is complete, and the paper is not an escrow. Duncan v. Pope, 47 Ga. 445 (1872); Moore v. Farmers’ Mut. Ins. Ass’n, 107 Ga. 199, 33 S.E. 65 (1899); Heitmann v. Commercial Bank, 6 Ga. App. 584, 65 S.E. 590 (1909); Adams v.

Hatfield, 17 Ga. App. 680, 87 S.E. 1099 (1916). Rule has no application to ordinary contracts in writing. Adams v. Hatfield, 17 Ga. App. 680, 87 S.E. 1099 (1916). If deed remains in control of maker, it is not strictly an escrow. Anderson v. Goodwin, 125 Ga. 663, 54 S.E. 679 (1906). Person to whom deed delivered must be agent of both parties. - In every case of an escrow, the person to whom the deed is delivered must, by mutual consent, be constituted the agent of both parties. If one is made merely the agent or attorney of the grantor, there would be no escrow, and the instrument would be recoverable by the grantor, since possession of the depository would remain merely that of the principal. It is equally true that if one is made merely the agent or attorney of the grantee, there would be no escrow since, if such attorneyship or agency is not such as to include the very subject matter of obtaining the conveyance for the grantee, delivery to such an agent or attorney would be altogether futile, while if the attorneyship or agency is such as to include the very matter of obtaining the conveyance for the grantee, the delivery to such a person would operate instantly to pass title into the principal, the same as if there were a delivery to the principal personally. Brown v. Brown, 192 Ga. 852, 16 S.E.2d 853 (1941). Grantee’s possession not conclusive of fact of delivery. - Even if the deed comes into possession of the grantee, that posses-

sion is by no means conclusive of the fact of delivery. Pooser v. Norwich Union Fire Ins. Soc’y, Ltd., 51 Ga. App. 962, 182 S.E. 44 (1935). Presumption of delivery. - Fact that deed was found in possession of grantee only raises presumption of delivery. Grice v. Grice, 197 Ga. 686, 30 S.E.2d 183 (1944). No constructive delivery. - Delivery of an altered deed to a 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. Z & Y Corp. v. Indore C. Stores, Inc., 282 Ga. App. 163, 638 S.E.2d 760 (2006). Admissibility of deed in grantee’s custody. - Deed coming from grantee’s custody, coupled with possession of property conveyed, is admissible in evidence. Tippins v. Lane, 184 Ga. 331, 191 S.E. 134 (1937).

Failure of conditions eliminates existence of conveyance. - After a deed was delivered to the city’s attorney to hold until certain conditions as to establishment of a park could be met, because the conditions for transfer of title were not met, no conveyance was made. The fact that the city fenced the area and charged an admission fee does not overcome the intentions of the parties as to the conditions on which the city would become the owner of the streets. Cedeno v. Lockwood, Inc., 250 Ga. 799, 301 S.E.2d 265 (1983). Cited in Equitable Mtg. Co. v. Butler, 105 Ga. 555, 31 S.E. 395 (1898); Foy v. Scott, 197 Ga. 138, 28 S.E.2d 107 (1943); Spence v. Brown, 198 Ga. 566, 32 S.E.2d 297 (1944); Morris v. Johnson, 219 Ga. 81, 132 S.E.2d 45 (1963).

OPINIONS OF THE ATTORNEY GENERAL Constructive delivery of a warranty deed may be effected by delivery to an escrow agent within 120 days after execution of the sales contract for purposes of statute, provided all of the following elements are present: (1) the escrow agent must be the agent of both the seller and the buyer, not just that of the seller; (2) the seller must release all control over the warranty deed when the seller delivers the deed to the escrow agent; (3) the escrow agent must be

instructed to deliver the warranty deed to the buyer on the happening of a specific future event involving monetary consideration; (4) the escrow agent must be able to enforce the covenants and warranties found in former Code 1933, § 29-301 (see O.C.G.A. § 44-5-60) on behalf of the buyer; and (5) the real estate transaction must be properly recorded to put the world on notice of the buyer’s equitable interest in realty. 1974 Op. Att’y Gen. No. U74-17.

RESEARCH REFERENCES Am. Jur. 2d. - 23 Am. Jur. 2d, Deeds, § 116. 28 Am. Jur. 2d, Escrow, § 47. C.J.S. - 26A C.J.S., Deeds, §§ 389, 390. ALR. - Garnishment of money in escrow, 10 ALR 741. Parol evidence rule as applied to escrow agreement, 49 ALR 1529. Delivery of deed to third person to be delivered to grantee after grantor’s death, 52 ALR 1222. Rights and remedies where depositary fails or refuses to deliver instrument or property placed in escrow, notwithstanding performance of conditions of delivery, 95 ALR 293. Undelivered deed or escrow, pursuant to

oral contract, as satisfying Statute of Frauds, 100 ALR 196. Duty and liability of escrow holder as affected by time of performance of, or offer to perform, conditions upon which delivery was to be made by him, 107 ALR 948. Relation back of title or interest embraced in escrow instrument upon final delivery or performance of condition, 117 ALR 69. Presumption of delivery where deed is given by grantor to third person or comes into possession of grantee through third person, 124 ALR 462. Delivery of deed as conditioned on obtaining signature of another as grantor, 140 ALR 265.

Conclusiveness of manual delivery of deed to grantee as an effective legal delivery, 141 ALR 305. Delivery of deed or mortgage by one or more but not all of the grantors or mortgagors, 162 ALR 892. Who must bear loss resulting from defaults or speculations of escrow holder, 15 ALR2d 870.

Sufficiency of delivery of deed where grantor retains, or recovers, physical possession, 87 ALR2d 787. Rights in funds representing ‘‘escrow’’ payments made by mortgagor in advance to cover taxes or insurance, 50 ALR3d 697.