O.C.G.A. § 44-5-62 (2019)

Annotations

JUDICIAL DECISIONS Analysis General Consideration Right to Sell Quiet Possession Freedom from Encumbrances

ACQUISITION AND LOSS OF PROPERTY General Consideration

This statute modifies the common law, in that the statute embraces in the term general warranty, by implication, certain specific warranties which the common law required to be express. Cheatham v. Palmer, 176 Ga. 227, 167 S.E. 522 (1933) (see O.C.G.A. § 44-5-62). This statute abolishes the technical rule of the common law which limited the assignee to real covenants. Tucker v. McArthur, 103 Ga. 409, 30 S.E. 283 (1898) (see O.C.G.A. § 44-5-62). General warranty of title is only a covenant against valid claims of all persons. - Although the general warranty of title covenants the right of quiet enjoyment and of freedom from encumbrances, it is only a covenant against the valid claims of all persons. Pease & Elliman Realty Trust v. Gaines, 160 Ga. App. 125, 286 S.E.2d 448 (1981). Covenant runs with the land. - Unless the covenant expressly negatives such transmission, a covenant of warranty of title of quiet enjoyment, and of freedom from encumbrances, made by any grantor, passes with the land to subsequent purchasers. McRae v. Sewell, 47 Ga. App. 290, 170 S.E. 315 (1933). An unrestricted express warranty of title being a covenant running with the land, a purchaser may maintain an action thereon against any prior grantor making such a warranty, if one is a privy in estate. McEntyre v. Merritt, 49 Ga. App. 416, 175 S.E. 661 (1934). While the right of action passes out of an intermediate warrantor when the warrantor relinquishes title to the land, and into the assignee, nevertheless, if it should occur that the intermediate covenantor is placed under the legal necessity of praying the lien, or mending the breach, and the intermediate covenantor actually does so, the right to recover for the amount paid out is thereby restored to the intermediate covenantor, and to that extent alone the intermediate covenantor remitted to the intermediary’s rights under the intermediary’s own warranties from prior grantees, and may in turn recover from the prior grantees the amounts so paid. Robertson v. Webster, 79 Ga. App. 30, 52 S.E.2d 511 (1949). Covenant relates only to title at time of execution. - Covenant of general warranty relates only to the title, and, as a general

rule, only to the title as the title existed at the time the covenant was executed. Lifsey v. Finn, 40 Ga. App. 735, 151 S.E. 392 (1930); Rabun Mineral & Dev. Co. v. Heyward, 171 Ga. 322, 155 S.E. 324 (1930). Transfer of rights by deed. - Mode of transfer of the covenantee’s rights in regard to covenants is by deed. Tucker v. McArthur, 103 Ga. 409, 30 S.E. 283 (1898). Warrantors who may be sued. - When there has been a breach of the warranty of title to land the last grantee has a right of action against and may sue one’s immediate warrantor, the remote or original warrantor, or any intermediate warrantor, or any or all of them in one action. Smith v. Smith, 129 Ga. App. 618, 200 S.E.2d 504 (1973). Right of action not affected by previous conveyance by grantor. - In an action by the grantee against the grantor in a warranty deed conveying the fee simple title to described land, for a breach of such warranty, the grantee’s right of action is not affected because of the grantee’s prior knowledge that such grantor did not own the entire tract conveyed, or that the grantor had conveyed a part thereof to another. Currin v. Milhollin, 53 Ga. App. 270, 185 S.E. 380 (1936). Warranty of seizin. - In order to recover on a warranty of seizin, the loss of seizin (that is, eviction) has to be proved. Cheatham v. Palmer, 176 Ga. 227, 167 S.E. 522 (1933). Zoning matters. - Traditional scope of a general warranty of title does not extend to include zoning matters. Barnett v. Decatur, 261 Ga. 205, 403 S.E.2d 46 (1991). Mere outstanding title not breach of warranty. - To constitute a breach of the covenant of warranty, or for quiet employment, an eviction or equivalent disturbance by title paramount must occur, and the mere existence of an outstanding paramount title will not constitute a breach. Hitchcock v. Tollison, 213 Ga. App. 477, 444 S.E.2d 844 (1994). Builder liable to title insurer for breach of warranty. - Doctrine of equitable subrogation applied, a title insurer had standing to sue a builder, and the builder was liable to the insurer for breach of warranty of title as the builder conveyed property to an insured by a general warranty deed that the builder did not own, there was a

General Consideration (Cont’d) defect in the title, the insurer settled a dispute over title to the lot, and the dispute was not a boundary line dispute but concerned the failure of title to vest in the insured. Wilkinson Homes, Inc. v. Stewart Title Guar. Co., 271 Ga. App. 577, 610 S.E.2d 187 (2005). Builder’s president not liable to title insurer for breach. - Builder’s president was not liable, individually, to a title insurer for a breach of warranty of title deed as the builder was the sole grantor of the property and the president never, individually, owned the property or warranted the title. Wilkinson Homes, Inc. v. Stewart Title Guar. Co., 271 Ga. App. 577, 610 S.E.2d 187 (2005). Cited in Miller v. Desverges, 75 Ga. 407 (1885); Thrower v. Baker, 144 Ga. 372, 87 S.E. 301 (1915); Croom v. Allen, 145 Ga. 347, 89 S.E. 199 (1916); Sawyer Coal & Ice Co. v. Kinnett-Odom Co., 192 Ga. 166, 14 S.E.2d 879 (1941); Echols v. Thompson, 211 Ga. 299, 85 S.E.2d 423 (1955); Wright v. Piedmont Eng’r & Constr. Corp., 106 Ga. App. 401, 126 S.E.2d 865 (1962); Walter L. Tally, Inc. v. Council, 109 Ga. App. 100, 135 S.E.2d 515 (1964); Northside Title & Abstract Co. v. Simmons, 200 Ga. App. 892, 409 S.E.2d 885 (1991); Benton v. Gaudry, 230 Ga. App. 373, 496 S.E.2d 507 (1998). Right to Sell Statute enlarges the common law general warranty so as to include the covenant of right to convey. Allen v. Taylor, 121 Ga. 841, 49 S.E. 799 (1905); White & Corbitt v. Stewart & Co., 131 Ga. 460, 62 S.E. 590, 15 Ann. Cas. 1198 (1908) (see O.C.G.A. § 44-5-62). Quiet Possession Loss of possession must be shown. - On a covenant for quiet possession, loss of possession has to be shown. Cheatham v. Palmer, 176 Ga. 227, 167 S.E. 522 (1933). Freedom from Encumbrances All encumbrances at time of conveyance. - General warranty includes all encum-

brances existing at the time of the conveyance of the property to which the property conveyed is subject. Cheatham v. Palmer, 176 Ga. 227, 167 S.E. 522 (1933). Conditions precedent. - On a covenant against encumbrances, the only conditions precedent to a right of action are the outstanding of a valid encumbrance at the date of the covenant affecting the property conveyed, and its discharge by the covenantee. Cheatham v. Palmer, 176 Ga. 227, 167 S.E. 522 (1933). When an alleged breach of warranty is based upon the existence of an outstanding encumbrance which it is the duty of the grantor to discharge, it is not necessary to allege or prove that the grantee in the deed has been evicted, or has lost possession of the property, nor is it necessary that the grantor be vouched into court to defend the title. Cheatham v. Palmer, 176 Ga. 227, 167 S.E. 522 (1933). Knowledge. - Because the purchaser knew about a road and knew that the road was being used before the purchaser closed on the property, this knowledge defeated the purchaser’s claim for breach of warranty of title. Richitt v. Southern Pine Plantations, Inc., 228 Ga. App. 333, 491 S.E.2d 528 (1997). Floodwater detention easement breached general warranty of title. - In an action arising from the sale of property, the trial court erred in granting summary judgment to the sellers, contrary to both O.C.G.A. §§ 44-5-62 and 44-5-63, as a floodwater detention easement burdened the property by permitting the impoundment of water on it to prevent flooding or increased water runoff on other property located downstream, and, even though the lake was certainly open and obvious, the same could not necessarily be said of the easement; moreover, a factual issue remained as damages, and although the buyers’ constructive notice of the easement by reason of its recordation within the chains of title would provide a compelling reason for exempting the easement from operation of the warranty deed, O.C.G.A. § 44-5-63 provided otherwise. McMurray v. Housworth, 282 Ga. App. 280, 638 S.E.2d 421 (2006).

RESEARCH REFERENCES Am. Jur. 2d. - 23 Am. Jur. 2d, Deeds, § 237. C.J.S. - 33 C.J.S., Exchange of Property, § 9 et seq. ALR. - Unfounded outstanding claims to or against real property as breach of covenants of deed, 5 ALR 1084. Equitable or incipient easement as breach of covenant against encumbrances, 16 ALR 1066. Affirmative covenants as running with land, 41 ALR 1363; 102 ALR 781; 118 ALR 982. Encumbrance undischarged and unenforced as affecting rights and damages under a covenant against encumbrances, 44 ALR 410. Duty of purchaser of real property to disclose to the vendor facts or prospects affecting the value of the property, 56 ALR 429. Encroachment of building upon adjoining property or street as breach of covenant in deed of property on which building is located, 60 ALR 234. Easement as breach of covenant against encumbrances, 64 ALR 1479. Unpaid public improvement as constituting breach of covenant or a defect in the vendor’s title, 72 ALR 302.

Garage or filling station as breach of restrictive covenant, 99 ALR 541. Measure of damages for breach of covenant of title in conveyance or mortgage of real property, 100 ALR 1194. Grantor’s continued possession of land after execution of deed as notice of his claim adverse to title conveyed, 105 ALR 845. Outstanding right of dower as breach of covenant of title or against encumbrances in deed or mortgage of real estate, 141 ALR 482. What amounts to constructive eviction which will support action for breach of covenant of warranty or for quiet enjoyment, 172 ALR 18. Use of property by college fraternity or sorority as violation of restrictive covenant, 7 ALR2d 436. Condemnation, proceeding therefor, or prospect thereof, as affecting marketability of title, 21 ALR2d 792. Validity, construction, and effect of land sale contract providing that title must be satisfactory to purchaser, 47 ALR2d 455. Party walls and party-wall agreements as affecting marketability of title, 81 ALR2d 1020. When statute of limitations starts to run against action for breach of covenant of warranty or of seizin, 95 ALR2d 913.