O.C.G.A. § 44-5-63 (2019)
General warranty - Defects known to purchaser
In a deed, a general warranty of title against the claims of all persons covers defects in the title even if they are known to the purchaser at the time he takes the deed. (Civil Code 1895, § 3615; Civil Code 1910, § 4195; Code 1933, § 29-304.) History of Code section. - This Code section is derived from the decision in Miller v. Desverges, 75 Ga. 407 (1886).
Annotations
Law reviews. - For article surveying developments in Georgia real property law
from mid-1980 through mid-1981, see 33 Mercer L. Rev. 219 (1981). For survey article on real property law, see 59 Mercer L. Rev. 371 (2007).
JUDICIAL DECISIONS 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. § 44-5-63). Purchaser has right to rely on vendor’s warranty. - When the purchaser had knowledge of the defect in the vendor’s title, or of
the fact that the vendor had formerly sold a portion of the land to another, purchaser although having such knowledge has a right to rely on the vendor’s warranty. Currin v. Milhollin, 53 Ga. App. 270, 185 S.E. 380 (1936). Defects in title include liens and encumbrances. Osburn v. Pritchard, 104 Ga. 145, 30 S.E. 656 (1898). Outstanding title included. - ‘‘Defects in title’’ include an outstanding paramount title. McCall v. Wilkes, 121 Ga. 722, 49 S.E. 722 (1905); Cummings v. Fleming & Hines, 30 Ga. App. 601, 118 S.E. 593 (1923). Allegations as to an outstanding paramount title in a third person are sufficient to set forth a cause of action to recover damages by reason of the breach of a covenant of warranty of title. Lee v. Austin, 209 Ga. 715, 75 S.E.2d 426 (1953). Taxes assessed after contract of sale not included. - Taxes assessed after a contract of sale of land, which the purchaser has covenanted to pay, and which the purchaser permits to remain unpaid, thus causing a sale of the land under a tax execution, do not constitute a defect in the title caused by the vendor under the covenant, and such defect in title is attributable to the purchaser’s own fault, for which the vendor is not liable under the vendor’s warranty. Lifsey v. Finn, 40 Ga. App. 735, 151 S.E. 392 (1930). Parol evidence inadmissible to contradict warranty. - Parol evidence to show an intention contradictory to that expressed by the warranty is not admissible. McCall v. Wilkes, 121 Ga. 722, 49 S.E. 722 (1905).
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). Cited in Godwin v. Maxwell, 106 Ga. 194, 32 S.E. 114 (1898); Foute v. Elder, 109 Ga. 713, 35 S.E. 118 (1900); Lowery v. Yawn, 111 Ga. 61, 36 S.E. 294 (1900); Allen v. Taylor, 121 Ga. 841, 49 S.E. 799 (1905); Taylor v. Allen, 131 Ga. 416, 62 S.E. 291 (1908); Thrower v. Baker, 144 Ga. 372, 87 S.E. 301 (1915); Peters v. Miller, 154 Ga. 500, 114 S.E. 640 (1922); Finn v. Lifsey, 169 Ga. 599, 150 S.E. 908 (1929); Federal Land Bank v. Bank of Lenox, 192 Ga. 543, 16 S.E.2d 9 (1941); Hood v. Connell, 204 Ga. 782, 51 S.E.2d 853 (1949); Lunsford v. King, 132 Ga. App. 749, 209 S.E.2d 27 (1974); Mansell v. Pappas, 156 Ga. App. 272, 274 S.E.2d 588 (1980).
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. - Remedy of grantee in possession under deed with covenants of title, independently of an action on those covenants, where the grantor’s title is defective, 65 ALR 1142. Unpaid public improvement as constitut-
ing breach of covenant or a defect in the vendor’s title, 72 ALR 302. Remedies of grantor who has conveyed with covenants against third person asserting title or interest hostile to covenants, 97 ALR 711. Validity, construction, and effect of land sale contract providing that title must be satisfactory to purchaser, 47 ALR2d 455.