O.C.G.A. § 44-5-46 (2019)

Annotations

JUDICIAL DECISIONS Jurisdiction under prior law. - Prior to statute’s codification, matter lay in common jurisdiction of county’s superior and inferior courts. Perkins v. Perkins, 21 Ga. 13 (1857) (see O.C.G.A. § 44-5-46).

When action for land predicated upon lost deed, proof of original must be established. - When, in an action for land, the right of the plaintiffs is predicated upon an alleged lost and unrecorded deed, proof of the

existence of a genuine original must be established before secondary evidence relating thereto is admissible. Latham v. Fowler, 199 Ga. 648, 34 S.E.2d 870 (1945), later appeal, 201 Ga. 68, 38 S.E.2d 732 (1946). Evidence sufficient to prove deed. - Maker may prove the deed, without the necessity of calling the attesting witnesses, and if the record has also been destroyed, subsequent possession of the deed by one who derived title from the grantee under it is sufficient to establish delivery thereof. Fletcher v. Horne, 75 Ga. 134 (1885). Evidence not sufficient to prove deed. - Evidence of a statement by a defendant that the defendant knew a deed as alleged by the plaintiffs was in existence in which the father and his children were grantees is not sufficient to establish the deed for the reason that such as an admission is too indefinite to properly identify and establish the existence of any particular deed. Latham v. Fowler, 199 Ga. 648, 34 S.E.2d 870 (1945). When, in an effort to establish a lost and unrecorded deed, a certified copy of a petition, filed by the plaintiffs’ father (holder of a life estate under the alleged deed) to sell for reinvestment, with an attached typewritten copy of what purported to be the alleged unrecorded deed, is admitted in evidence, the evidence does not establish that in fact a genuine deed has been executed, nor does the fact that the petition asserted that the plaintiffs’ father had a life interest and the children had a remainder interest in the land make the assertion therein a declaration against the interest of the plaintiffs’ father. Latham v. Fowler, 199 Ga. 648, 34 S.E.2d 870 (1945), later appeal, 201 Ga. 68, 38 S.E.2d 732 (1946).

Judgment establishing copy admissible in proceedings if original admissible. - Judgment of a superior court establishing a copy of a lost deed is, when properly authenticated, admissible in any proceeding where the original deed would be admissible. Leggett v. Patterson, 114 Ga. 714, 40 S.E. 736 (1902); Drawdy v. Musselwhite, 150 Ga. 723, 105 S.E. 298 (1920). Copy of copy has same force. - Properly authenticated copy of a copy of a deed, established under the provisions of this statute, has the same force as the copy of which it is made. McLanahan v. Blackwell, 119 Ga. 64, 45 S.E. 785 (1903) (see O.C.G.A. § 44-5-46). Judgment binding upon parties, and upon grantor’s heirs where administrator party. - Judgment establishing a copy of an alleged lost original constitutes a conclusive determination that a genuine original had in fact existed as the act and deed of the alleged grantor, and, as an adjudication to that effect, is binding upon the parties in that proceeding, and upon heirs at law of the alleged deceased grantor when the administrator was a party defendant therein. Milner v. Allgood, 184 Ga. 288, 191 S.E. 132 (1937). Appellate jurisdiction not in Supreme Court. - Proceeding to establish a copy of a lost deed did not constitute an action respecting title to land; hence appellate jurisdiction was not in the Supreme Court. Loftin v. Carroll County Bd. of Educ., 195 Ga. 689, 25 S.E.2d 293 (1943). Cited in Loftin v. Carroll County Bd. of Educ., 70 Ga. App. 315, 28 S.E.2d 372 (1943); Fletcher v. Fletcher, 209 Ga. 184, 71 S.E.2d 219 (1952).

RESEARCH REFERENCES C.J.S. - 76 C.J.S., Records, § 43. ALR. - Right of action to restore lost deed, 31 ALR 552.