O.C.G.A. § 44-5-45 (2019)
When ancient deed admissible without proof of execution
Reserved. Repealed by Ga. L. 2011, p. 99, § 82/HB 24, effective January 1, 2013.
Annotations
JUDICIAL DECISIONS Section added exception to general common law rule. McArthur v. Morrison, 107 Ga. 796, 34 S.E. 205 (1899) (see O.C.G.A. § 44-5-45). Instrument complying fully with provi-
sions of this statute proves itself. Matthews v. Castleberry, 43 Ga. 346 (1871) (see O.C.G.A. § 44-5-45). Instrument must be right upon the instrument’s face, or made so by proof, before the
instrument’s age alone will dispense with proof. Hill v. Nisbet, 58 Ga. 586 (1877); Ferrell v. Hurst, 68 Ga. 132 (1881). There must be preliminary proof of deed coming from proper custody. Harrell v. Culpepper, 47 Ga. 635 (1873); Maddox v. Gray, 75 Ga. 452 (1885); Swicard v. Hooks, 85 Ga. 580, 11 S.E. 863 (1890); Williamson v. Mosley, 110 Ga. 53, 35 S.E. 301 (1900). Rebuttal of preliminary proof by any competent evidence may be made. Albright v. Jones, 106 Ga. 302, 31 S.E. 761 (1898). Presumption of delivery rebutted when recording takes place after grantor’s death. - Ordinarily the recording of a deed is prima facie evidence of delivery. This presumption is rebutted when the recording takes place after the death of the grantor as delivery must occur during the grantor’s lifetime. Corley v. Parson, 236 Ga. 346, 223 S.E.2d 708 (1976). Jury to pass on genuineness. - When such deed as described in this statute is apparently genuine, has come from the proper custody, and is shown not to be inconsistent with possession, or if other corroboration appears, it should be admitted in evidence as prima facie established. But the
jury has the right to finally pass on the deed’s genuineness, after hearing all the testimony pro and con. Gaskins v. Guthrie, 162 Ga. 103, 132 S.E. 764 (1926) (see O.C.G.A. § 44-5-45). Jury may find from face of deed that it is a forgery, without resort to aliunde evidence. Pridgen v. Green, 80 Ga. 737, 7 S.E. 97 (1888); Daugharty v. Drawdy, 134 Ga. 650, 68 S.E. 472 (1910). Instrument may be properly admitted as having been sufficiently proved pursuant to former Code 1933, § 38-707 (see O.C.G.A. § 24-7-5), irrespective of whether or not there was a sufficient compliance with the rule admitting ancient writings without proof. Rieves v. Smith, 184 Ga. 657, 192 S.E. 372 (1937). Cited in John Doe v. Roe, 49 Ga. 165 (1873); Weitman v. Thiot, 64 Ga. 11 (1879); Follendore v. Follendore, 110 Ga. 359, 35 S.E. 676 (1900); McConnell Bros. v. Slappey, 134 Ga. 95, 67 S.E. 440 (1910); Rowe v. Henderson Naval Stores Co., 143 Ga. 756, 85 S.E. 917 (1915); Orr v. Dunn, 145 Ga. 137, 88 S.E. 669 (1916); McDay v. Metropolitan Life Ins. Co., 51 Ga. App. 791, 181 S.E. 871 (1935); Gibson v. Causey, 223 Ga. 135, 153 S.E.2d 704 (1967).
RESEARCH REFERENCES Am. Jur. 2d. - 23 Am. Jur. 2d, Deeds, § 87. C.J.S. - 26A C.J.S., Deeds, § 73.
ALR. - Recital in ancient deed as evidence of facts recited against stranger to title, 6 ALR 1437.