O.C.G.A. § 44-5-64 (2019)
Action for breach of warranty - Burden of proof
In actions for breach of warranty of title, the burden of proof is on the plaintiff except in cases where outstanding encumbrances have been paid off or possession has been yielded as a consequence of legal proceedings of which the warrantor had notice and an opportunity to defend. (Civil Code 1895, § 3617; Civil Code 1910, § 4197; Code 1933, § 29-306.) History of Code section. - This Code section is derived from the decisions in Leary v. Durham, 4 Ga. 593 (1848), and Amos v. Cosby, 77 Ga. 793 (1885).
Annotations
Cross references. - Form to be used in action for breach of warranty in deed, § 9-10-203.
JUDICIAL DECISIONS Plaintiff ’s burden. - Statement in this statute that the burden of proof is on the plaintiff, except in the two instances mentioned, plainly indicates that they are not the only cases in which suit may be brought for a breach of warranty. When the warrantor has not been vouched or notified, so as to have an opportunity to defend, the bringing of suit by the holder of the outstanding title against the warrantee and obtaining judgment thereon would be of little advantage to the warrantor. In cases other than those specified, the plaintiff would carry the burden of showing that the adverse title was paramount, and that the plaintiff ’s eviction, or what was equivalent to eviction under it, was legal. Joyner v. Smith, 132 Ga. 779, 65 S.E. 68 (1909) (see O.C.G.A. § 44-5-64). In a suit for a breach of warranty, the burden is on the plaintiff to show eviction under an outstanding paramount title, or a superior lien upon the land. Roberts v. Hill, 78 Ga. App. 264, 50 S.E.2d 706 (1948). Yielding possession as consequence of legal proceedings. - Yielding possession of land by a vendee, as a result of a suit for trespass to the land and an injunction brought against the vendee by another which is predicated on a title paramount to
the title under which the vendee claims, and the title was adjudicated in that plaintiff, constitutes such yielding of possession in consequence of legal proceedings, and when the warrantor had notice and an opportunity to defend, as affords the vendee a right of action against the vendee’s warrantor for a breach of the warranty of title. Reese v. Manget, 53 Ga. App. 637, 186 S.E. 880 (1936). Showing of competing claim of title. - Trial court erred in granting summary judgment to the buyer in the buyer’s suit against the sellers for breach of warranty of title to real property as the evidence, a letter to the buyer after the sale, showed only a competing claim of title to the property and not that the buyer was compelled to yield to an outstanding paramount title to the property. Whited v. Issenberg, 261 Ga. App. 787, 584 S.E.2d 59 (2003). Cited in Haines v. Fort, 93 Ga. 24, 18 S.E. 994 (1893); McMullen v. Butler & Co., 117 Ga. 845, 45 S.E. 258 (1903); Brooks v. Winkles, 139 Ga. 732, 78 S.E. 129 (1913); Turner v. Tidwell, 141 Ga. 123, 80 S.E. 901 (1913); Rowan v. Newbern, 32 Ga. App. 363, 123 S.E. 148 (1924); Lee v. Austin, 209 Ga. 715, 75 S.E.2d 426 (1953).
RESEARCH REFERENCES Am. Jur. 2d. - 23 Am. Jur. 2d, Deeds, § 237. ALR. - Affirmative covenants as running with land, 41 ALR 1363; 102 ALR 781; 118 ALR 982.
What amounts to constructive eviction which will support action for breach of covenant of warranty or for quiet enjoyment, 172 ALR 18.