O.C.G.A. § 9-12-86 (2019)

Annotations

JUDICIAL DECISIONS Purpose of O.C.G.A. § 9-12-86 is to protect third persons acting in good faith and without notice by requiring that any judgment, decree, or order must be recorded before it will in any way affect or become a lien on title to real property. National Bank v. Morris-Weathers Co., 248 Ga. 798, 286 S.E.2d 17 (1982). Effect of O.C.G.A. § 9-12-86 is not to repeal either O.C.G.A. § 9-12-87 or O.C.G.A. § 9-12-80. While it is true that § 9-12-86, as amended, provides that all laws or parts of laws in conflict are repealed, there is no conflict which requires a repeal. National Bank v. Morris-Weathers Co., 248 Ga. 798, 286 S.E.2d 17 (1982). Section not concerned with perfection of title. - Language in statute that provides that no judgment shall in any way affect or become a lien upon real property until that judgment is recorded concerns perfection of judgments as liens upon real property, and not perfection of

title. Richardson v. Park Ave. Bank, 173 Ga. App. 43, 325 S.E.2d 455 (1984). Time from which liens to be dated. - This section manifests an intention to date liens from the time of recording on the general execution docket. The obvious import is to allow all persons, whether purchasers or creditors, to rely on courthouse records to determine what claims to real property exist. In re Tinsley, 421 F. Supp. 1007 (M.D. Ga. 1976), aff ’d, 554 F.2d 1064 (5th Cir. 1977). But see, National Bank v. Morris-Weathers Co., 248 Ga. 798, 286 S.E.2d 17 (1982). Recorded lien relates back to time of judgment. - Although O.C.G.A. § 9-12-86 causes a judgment to have no effect as a lien on real estate during the period in which the judgment is not recorded, it does not mean that the judgment does not exist. The period between the taking of the judgment and the judgment’s recording is merely a period of dormancy. When the judgment is recorded

as provided for, the dormancy ends and the judgment becomes effective as a lien on real estate. For priority purposes, the judgment then relates back to the date of the judgment’s rendition and shall be considered of equal date with other perfected liens arising from judgments on verdicts rendered at the same term of court. Otherwise there would be a race to the courthouse by competing judgment creditors. This is the very evil which O.C.G.A. § 9-12-87 was intended to avoid. National Bank v. Morris-Weathers Co., 248 Ga. 798, 286 S.E.2d 17 (1982). Recordation prerequisite applicable only to liens on real property. - Requirement of recordation in this section as a prerequisite to the creation of a lien applies only to liens on real property. In re Tinsley, 421 F. Supp. 1007 (M.D. Ga. 1976), aff ’d, 554 F.2d 1064 (5th Cir. 1977); National Bank v. Morris-Weathers Co., 248 Ga. 798, 286 S.E.2d 17 (1982). Although a judgment creditor did not have a lien on debtor’s real property because the creditor did not record the out-of-state judgment on the general execution docket pursuant to O.C.G.A. § 9-12-86, the creditor did have a lien on the debtor’s personal property because the recordation requirement only applied to liens on real property. Natl Serv. Direct, Inc. v. Anderson (In re Nat’l Serv. Direct, Inc.), No. 03-76883, 2005 Bankr. LEXIS 298 (Bankr. N.D. Ga. Jan. 28, 2005). In a declaratory judgment action brought by the purchasers of certain real property to remove a cloud from the purchaser’s title asserted by a bank who had obtained a writ of fieri facias (the lien) against one of the sellers, the trial court erred by granting summary judgment to the bank and holding that the purchasers had a duty to inquire as to prior names used by that seller. The purchasers provided expert testimony that the lien using that seller’s married name had not been recorded and, in turn, the bank failed to present any evidence to dispute the affidavits of the purchasers’ witnesses or to cite to any authority which imposed a duty on the purchasers or the purchasers’ agents to investigate prior or alternative names of that seller when nothing occurred prior to or during the closing that

created a duty to inquire and that the seller had falsely sworn under oath that the property was not subject to any encumbrances or liens and that there were no outstanding judgments. Gallagher v. Buckhead Cmty. Bank, 299 Ga. App. 622, 683 S.E.2d 50 (2009), cert. denied, No. S09C2080, 2010 Ga. LEXIS 2 (Ga. 2010). As to personal property, former Code 1933, §§ 110-506 and 110-507 (see now O.C.G.A. §§ 9-12-80 and 9-12-89) applied to establish the date of a trial court judgment as the date on which the creditors obtain a lien. In re Tinsley, 421 F. Supp. 1007 (M.D. Ga. 1976), aff ’d, 554 F.2d 1064 (5th Cir. 1977). Georgia law determines when transfer takes place for Bankruptcy Code, 11 U.S.C. § 547(e)(1), purposes; and a transfer for preference avoidance purposes does not occur until the lien is recorded on the general execution docket pursuant to O.C.G.A. § 9-12-86. Wall v. Asics Tiger Corp., 216 Bankr. 1016 (Bankr. M.D. Ga. 1998). Under O.C.G.A. § 9-12-86, a creditor’s judgment lien against a debtor’s real property was not perfected for purposes of 11 U.S.C. § 547(b) until the lien was recorded, and because the lien was recorded within 90 days of the filing of the debtor’s bankruptcy petition, a trustee was permitted to avoid the transfer of the security interest as a preference; the court declined to use the court’s equitable powers under 11 U.S.C. § 105(a) to find that the transfer occurred outside the preference period because to do so would have circumvented the trustee’s clear statutory authority to avoid preference transactions. Pettigrew v. Hoey Constr. Co. (In re NotJust Another CarWash, Inc.), No. 04-90859-MGD, 2007 Bankr. LEXIS 979 (Bankr. N.D. Ga. Feb. 15, 2007). In determining that a debtor’s transfer of a security interest in certain real property to a judgment creditor occurred for purposes of 11 U.S.C. § 547(b) when the creditor’s judgment lien was recorded, the court applied O.C.G.A. § 9-12-86 because: (1) case law holding that an unrecorded deed had priority over a recorded judgment lien was limited to O.C.G.A. § 44-2-2 and did not prevent the application of § 9-12-86 in the instant case; (2)

§ 9-12-86 provided an exception to O.C.G.A. § 9-12-80’s general rule that a creditor acquired a lien when judgment was entered; and (3) a trustee’s imputed knowledge of a transfer was not relevant for purposes of 11 U.S.C. § 547. Pettigrew v. Hoey Constr. Co. (In re NotJust Another CarWash, Inc.), No. 04-90859-MGD, 2007 Bankr. LEXIS 979 (Bankr. N.D. Ga. Feb. 15, 2007). Recordation of in-state federal judgment in county is all that is required to establish lien. - To establish a lien on real property, a judgment creditor must file the writ of fieri facias on the general execution docket of the county in which the property is located. Thus, given the requirement that intrastate federal court judgments must receive the same treatment as state court judgments, all that a holder of an in-state federal judg-

ment must do to establish a lien on real property is record a federal writ of execution on the general execution docket of the respective county. Tunnelite, Inc. v. Estate of Sims, 266 Ga. App. 476, 597 S.E.2d 555 (2004). Cited in Dunlap Hdwe. Co. v. Tharp, 2 Ga. App. 63, 58 S.E. 398 (1907); Stephens v. Stephens, 220 Ga. 22, 136 S.E.2d 726 (1964); City of Rome v. Pilgrim, 246 Ga. 281, 271 S.E.2d 189 (1980); Southern Educators Assocs. v. Silver, 245 Ga. 520, 284 S.E.2d 3 (1981); Landmark First Nat’l Bank v. Schwall & Heuett, 161 Ga. App. 356, 288 S.E.2d 331 (1982); Watkins v. Citizens & S. Nat’l Bank, 163 Ga. App. 468, 294 S.E.2d 703 (1982); Eavenson v. Parker, 261 Ga. 607, 409 S.E.2d 520 (1991); Baggett v. Baggett, 270 Ga. App. 619, 608 S.E.2d 688 (2004).

OPINIONS OF THE ATTORNEY GENERAL Any and all judgments, orders, decrees, or writs of fieri facias must be recorded and not merely one of them, and they must be recorded in as many of

the appropriate records of the clerk’s office as included within the definition of ‘‘applicable records.’’ 1967 Op. Att’y Gen. No. 67-222.

RESEARCH REFERENCES Am. Jur. 2d. - 46 Am. Jur. 2d, Judgments, §§ 349, 352. Am. Jur. Pleading and Practice Forms. - 15 Am. Jur. Pleading and Practice Forms, Judgments, § 18. C.J.S. - 49 C.J.S., Judgments, § 772 et seq.

ALR. - Judgment as lien on unrecorded title to real estate, 43 ALR 44. Decree on bill of review reversing prior decree as affecting purchaser or mortgagee of real property in the interval between the original decree and the filing of the bill of review, 150 ALR 676.