O.C.G.A. § 9-3-23 (2019)

Annotations

Law reviews. For comment on Baxley Hdwe. Co. v.

Morris, 165 Ga. 359, 140 S.E. 869 (1927), see 1 Ga. B.J. 51 (1927). For article surveying Real Property law in 1984-1985, see 37 Mercer L. Rev. 343 (1985). For article, “Construction Law,” see 63 Mercer L. Rev. 107 (2011).

JUDICIAL DECISIONS Phrase “shall be brought” refers to commencement of an action. Jordan v. Bosworth, 123 Ga. 879, 51 S.E. 755, 1905 Ga. LEXIS 619 (1905). Six-year limitation applicable in absence of allegation of seal. - When appellant commenced action for proceeds of insurance policy over twenty years after the cause of action, if any, arose, and the appellant neither alleged nor presented any evidence to the trial court that the contract of insurance was under seal, the trial court properly applied the six-year limitations period applicable to simple contracts in writing and concluded that the action was barred. Lester v. Aetna Life Ins. Co., 172 Ga. App. 486, 323 S.E.2d 655, 1984 Ga. App. LEXIS 2553 (1984). Breach of sealed contract to purchase inventory. - Action for breach of a written contract, under seal, to purchase the inventory of a retail business was governed by the four-year limitation period under the UCC and not by the 20year limitation period applicable to actions on sealed instruments. McLean v. Gray, 180 Ga. App. 794, 350 S.E.2d 815, 1986 Ga. App. LEXIS 2289 (1986). Definition of sealed instrument part of limitation statute. - Definition of a sealed instrument, including recital of sealing in body thereof, is a part of this limitation statute. Alropa Corp. v. Rossee, 86 F.2d 118, 1936 U.S. App. LEXIS 3674 (5th Cir. 1936). Easement agreement under seal is within O.C.G.A. § 9-3-23. - After the LLC granted the condominium association an easement to a perpetual nonexclusive right to access the LLC’s private roadway system, the association’s claims were not time barred as the statute of limitation for an action on an instrument under seal was 20 years; and the easement was an instrument under seal because the body of the easement provided that the duly authorized representatives of the LLC and the association had signed and sealed the agreement; the LLC placed its corporate seal, containing the word “SEAL,” adjacent to its signature; and the LLC’s intent to seal the contract was shown in the body of the instrument. One

Buckhead Loop Condo. Ass’n v. Regent Tower Holdings, 341 Ga. App. 5, 798 S.E.2d 633, 2017 Ga. App. LEXIS 87 (2017). Designation as sealed instrument and representation of seal required. - Under this section, in order for note to be a sealed instrument, it must not only be designated as such by terms of instrument itself, but there must also be annexed to the signature some representation of a seal. Lanier v. Berry, 41 Ga. App. 34, 151 S.E. 821, 1930 Ga. App. LEXIS 451 (1930). Word “seal” in a scroll or its equivalent, following signature, does not make instrument one under seal within meaning of this section unless there is a recital of a seal in the body of the instrument. Alropa Corp. v. Rossee, 86 F.2d 118, 1936 U.S. App. LEXIS 3674 (5th Cir. 1936). Even though an escrow agreement stated it was signed under seal and signatures of the borrowers and sellers were followed by the word “seal,” the six-year limitation period for ordinary contracts, not O.C.G.A. § 9-3-23, applied since the signature of the escrow agent was not accompanied by such designation. McCalla v. Stuckey, 233 Ga. App. 397, 504 S.E.2d 269. Sealing must be indicated, etc. Promissory notes must recite that they are under seal in body of instrument and seal must be attached to signature of maker, before this section applies. Skrine v. Lewis, 68 Ga. 828, 1882 Ga. LEXIS 142 (1882); Barnes v. Walker & Co., 115 Ga. 108, 41 S.E. 243, 1902 Ga. LEXIS 316 (1902); Jackson v. Augusta S.R.R., 125 Ga. 801, 54 S.E. 697, 1906 Ga. LEXIS 282 (1906); Anderson v. Peteet, 6 Ga. App. 69, 64 S.E. 284, 1909 Ga. App. LEXIS 181 (1909). Contract which did not recite that it was under seal was not a sealed instrument, even though “L.S.” appeared after signatures. Cooper v. Dixie Cotton Co., 144 Ga. 33, 86 S.E. 242, 1915 Ga. LEXIS 30 (1915). In order to render promissory note a sealed instrument, intention to execute it as such must appear both in body of

instrument and after signature. Johnson v. International Agric. Corp., 41 Ga. App. 740, 154 S.E. 465, 1930 Ga. App. LEXIS 1079 (1930). Written contract which recites in body thereof that it is executed under seal and contains word “seal” or letters “L.S.” after signature of party executing the contract is a contract under seal. Crosby v. Burkhalter, 50 Ga. App. 610, 179 S.E. 180, 1935 Ga. App. LEXIS 237 (1935). Sealed instrument must contain recital in the body of the instrument that it is given under seal, and signature of party to the instrument must have attached thereto a seal or scroll; in other words, there must be both recital in body of instrument of intention to use a seal, as well as affixing of seal or scroll after the signature. Chastain v. L. Moss Music Co., 83 Ga. App. 570, 64 S.E.2d 205, 1951 Ga. App. LEXIS 910 (1951). Contract was a sealed instrument and 20-year period of limitations applied when the promissory portion of the contract ended “Signed, sealed and delivered by the Buyer . . .” and following buyer’s signature on the contract appeared the word “(SEAL).” Telfair Fin. Co. v. Williams, 172 Ga. App. 489, 323 S.E.2d 689, 1984 Ga. App. LEXIS 2555 (1984). Promissory note was under seal and thus subject to a 20 year statute of limitations since the words “Witness hand and seal” were found in the body of the note, and the decedent’s signature was followed by the letters “L. S.;” although the word “my” was not written in the blank, the blank was obviously meant to be filled with either the singular “my” or the plural “our,” depending on the number of makers. Brown v. Cooper, 237 Ga. App. 348, 514 S.E.2d 857. There was no basis for a homebuilder’s claim that because the agreements at issue recited that the parties had “hereunto set their hand and seals,” the agreements were in fact executed under seal, and were thus subject to the 20-year limit of O.C.G.A. § 9-3-23; in fact, the agreements bore no seal, and were thus subject to the six-year statute of limitation for written contracts. Koncul Enters. v. Fleet Fin.,

Inc., 279 Ga. App. 39, 630 S.E.2d 567, 2006 Ga. App. LEXIS 451 (2006). Sealed amendments to unsealed contract did not render the contract one under seal. - Contract for the sale of an office building was not a contract under seal to which the 20-year statute of limitations of O.C.G.A. § 9-3-23 applied, but was governed by the 6-year statute of limitations, O.C.G.A. § 9-3-24, because, although the agreement recited that it was under seal, the word “Seal” did not appear next to the signatures. Five amendments to the agreement, which were executed under seal, did not convert the existing agreement into a contract under seal because there was no evidence the parties intended such a conversion. Perkins v. M&M Office Holdings, LLC, 303 Ga. App. 770, 695 S.E.2d 82, 2010 Ga. App. LEXIS 398 (2010). Indication of sealing plus “(L.S.)”. - When the written lease agreement utilized a basic form consisting of a clause within the body of the contract stating that the parties had “set their hands and affixed their seals” thereto with the letters “(L.S.)” following their signatures, it constituted a valid instrument under seal. Travel Centre, Ltd. v. Starr-Mathews Agency, Inc., 179 Ga. App. 406, 346 S.E.2d 840, 1986 Ga. App. LEXIS 1929 (1986). “(Seal)” after signatures insufficient. - Option to purchase contract, bearing only the imprimatur “(SEAL)” after the signatures, does not create an instrument under seal. Travel Centre, Ltd. v. Starr-Mathews Agency, Inc., 179 Ga. App. 406, 346 S.E.2d 840, 1986 Ga. App. LEXIS 1929 (1986). “Seal” after signature required. - Licensor’s claim as to the licensee was time barred because the note was missing one of the two necessary elements to make it an instrument under seal as to the licensee since there was no affixed seal or use of the word “seal” after the signature for the licensee. Holiday Hosp. Franchising, LLC v. Oakbrook Realty & Invs., LLC, 817 Fed. Appx. 694, 2020 U.S. App. LEXIS 17103 (11th Cir. 2020). Recital in note plus notation “seal” after signatures sufficient. - Note that stated that the note was “given under

the hand and seal of each of the undersigned” and the appearance of the notation “(seal)” after the debtors’ signatures rendered the document one under seal and subject to a 20-year statute of limitations. Thomas v. Summers, 329 Ga. App. 250, 764 S.E.2d 578, 2014 Ga. App. LEXIS 661 (2014). State gold bond recited that it was attested to under the seal of the State of Georgia, and so the trial court correctly concluded that the applicable limitation period was that for instruments under seal. Sparagon v. State, 249 Ga. App. 440, 548 S.E.2d 118, 2001 Ga. App. LEXIS 519 (2001). Plat signed by the surveyor and with the surveyor’s seal attached did not qualify as an “instrument under seal” governed by the 20-year statute of limitation. Landmark Eng’g, Inc. v. Cooper, 222 Ga. App. 752, 476 S.E.2d 63. Recital that note is “given under hand and seal of each party” is a recital therein that it is executed under seal of the party subscribing the party’s name thereto as the maker. Crosby v. Burkhalter, 50 Ga. App. 610, 179 S.E. 180, 1935 Ga. App. LEXIS 237 (1935). Recital in note, “witness my hand and seal,” is recital that note is executed under seal of person whose name is subscribed thereto as maker. Crosby v. Burkhalter, 50 Ga. App. 610, 179 S.E. 180, 1935 Ga. App. LEXIS 237 (1935). Phrase “signed, sealed, and delivered in presence of,” or the like, above space for witnessing, does not indicate intention of parties to execute sealed instrument, but is merely statement to be signed by witness or witnesses. Johnson v. International Agric. Corp., 41 Ga. App. 740, 154 S.E. 465, 1930 Ga. App. LEXIS 1079 (1930). Promissory note under seal is within this section. Barnwell v. Hanson, 80 Ga. App. 738, 57 S.E.2d 348, 1950 Ga. App. LEXIS 765 (1950). This section is applicable to promissory note executed under seal of maker thereof. Harris v. Stribling, 66 Ga. App. 321, 17 S.E.2d 766, 1941 Ga. App. LEXIS 207 (1941). Endorsement of a sealed instrument is itself a contract under seal,

even though the signature of the endorser has no seal or scroll attached to it, and the statutory bar applicable to the endorser is 20 years; this is true whether endorsement is for purpose of passing title to the instrument or for accommodation purpose of giving credit to it. Pitman v. Pitman, 215 Ga. 585, 111 S.E.2d 721, 1959 Ga. LEXIS 548 (1959). This section applies to contract of endorsement on sealed instrument, even though no seal appears after signature of payee. Milledge v. Gardner, 29 Ga. 700, 1860 Ga. LEXIS 278 (1860); Baldwin Fertilizer Co. v. Carmichael, 116 Ga. 762, 42 S.E. 1002, 1902 Ga. LEXIS 251 (1902). Unsealed acknowledgment of original sealed obligation. - Unsealed written acknowledgment or recognition of original obligation under seal revives or extends such obligation for period of time during which a sealed paper would run, which is 20 years. King v. Edel, 69 Ga. App. 607, 26 S.E.2d 365, 1943 Ga. App. LEXIS 149 (1943). Sealed writing implying promise to pay indebtedness. - Signed and sealed writing acknowledging indebtedness by maker to another named person, in a certain sum, and specifying when it is to become due, imports promise to pay said sum at the time specified, and, although promise is not express, but understood, period of limitation for an action thereon is 20 years. King v. Edel, 69 Ga. App. 607, 26 S.E.2d 365, 1943 Ga. App. LEXIS 149 (1943). Recital in a deed which is under seal, legally executed and accepted by the grantee, obligating the grantor to pay grantee sum of money, is not barred by statute of limitations until 20 years have elapsed from date of delivery of the deed. King v. Edel, 69 Ga. App. 607, 26 S.E.2d 365, 1943 Ga. App. LEXIS 149 (1943). Breach of covenants in sealed deed. - When grantee accepts a deed which is under seal and thereby becomes bound by covenants therein, period of limitation applicable to action for a breach of such covenants is 20 years. Brice v. National Bondholders Corp., 187 Ga. 511, 1 S.E.2d 426, 1939 Ga. LEXIS 423 (1939) (decided prior to enactment of O.C.G.A. § 9-3-29). Statute of limitations on sheriff’s official bond is 20 years, since such bond

is under seal and there is no express statute providing for different period of limitation of actions. Washburn v. Foster, 87 Ga. App. 132, 73 S.E.2d 240, 1952 Ga. App. LEXIS 630 (1952). Contracts for purchase of land. - This section has been applied to contracts for purchase of land, which would include contracts for purchase of an interest in land, such as purported lease brought to be canceled. Baxley Hdwe. Co. v. Morris, 165 Ga. 359, 140 S.E. 869, 1927 Ga. LEXIS 394 (1927) (for comment, see 1 Ga. B.J. 51 (1927)). Promissory note under seal is within this section. - O.C.G.A. § 9-323, not the four-year limitation prescribed by the UCC, applied to an action on a promissory note that was secured by defendant’s automobile since the note was a contract under seal. Georgia Receivables, Inc. v. Cheatham, 216 Ga. App. 656, 455 S.E.2d 375, 1995 Ga. App. LEXIS 260 (1995). Promissory note executed in another state, which does not contain recital in body thereof that it is under seal, is not a sealed instrument upon which suit may be brought at any time within 20 years after right of action accrues, even though the word “seal” is written after the signature to the note. Gaffe v. Williams, 68 Ga. App. 299, 22 S.E.2d 765, 1942 Ga. App. LEXIS 113 (1942). Assignee’s recovery of collateral under a life insurance policy. - Bank was properly granted summary judgment in an interpleader action involving competing claims between the bank and a widow to the proceeds of a life insurance policy as the decedent, the widow’s spouse, assigned the policy to the bank as collateral for a loan in 1977 and, despite having the debt discharged in bankruptcy, the bank was not precluded to recover the bank’s collateral. Further, the bank’s right to recover did not accrue until the decedent’s death; therefore, the statutes of limitation had not expired. Miller v. Branch Banking & Trust Co., 292 Ga.

App. 189, 663 S.E.2d 756, 2008 Ga. App. LEXIS 659 (2008). Computing 20-year period. - Day promissory note was due and payable is to be excluded in reckoning period named in statute of limitations. Harris v. Stribling, 66 Ga. App. 321, 17 S.E.2d 766, 1941 Ga. App. LEXIS 207 (1941). Accrual of action. - When a second mortgage note specified that a default on the first mortgage executed on the same date would constitute a default on the second mortgage, a cause of action for payment of the second note accrued on the date of default on the first note. Blanton v. Whelan, 232 Ga. App. 631, 502 S.E.2d 746. Maturity date of debt instruments under seal is the commencing point for when a right of action accrues for purposes of the 20-year statute of limitation. Sparagon v. State, 249 Ga. App. 440, 548 S.E.2d 118, 2001 Ga. App. LEXIS 519 (2001). Statutory reversion occurs automatically and independently of statutes of limitation. - Statutory reversion of title held to occur automatically and independently of operation of statutes of limitation, and once automatic reversion occurred the deed holder’s right of foreclosure was extinguished, regardless of the running (or tolling) of any applicable limitation period, and regardless of any equitable considerations. White Properties Investments, LLC v. DIP Lending I, LLC, 366 Ga. App. 242, 881 S.E.2d 706, 2022 Ga. App. LEXIS 544 (2022). Questions of fact remained to be determined. - Grant of summary judgment to the creditors was reversed because questions of fact existed as to whether one creditor’s failure to confirm the foreclosure sale barred the claims asserted by it and the other creditor as well as a question of fact existed as to whether all of the debts at issue, including the 2004 loan, were owed to a single creditor and were given for the same purpose. Bryant v. Optima Int’l, 339 Ga. App. 696, 792 S.E.2d 489, 2016 Ga. App. LEXIS 642 (2016).

OPINIONS OF THE ATTORNEY GENERAL It is necessary to retain an entire highway project file for a 20-year pe-

riod in order to adequately protect the state’s interests in compliance with state

law because highway construction contracts are sealed contracts and are therefore subject to the 20-year statute of limi-

tations under this section. 1973 Op. Att’y Gen. No. 73-89.

RESEARCH REFERENCES Am. Jur. 2d. 51 Am. Jur. 2d, Limitation of Actions, § 114. 68 Am. Jur. 2d, Seals, § 1 et seq. C.J.S. 54 C.J.S., Limitations of Actions, § 97 et seq. ALR. Statutes of limitations or laches as bar to suit by heirs or next of kin to set aside conveyance or transfer by ancestor, 2 A.L.R. 447. Effect of absence of seal from execution, 28 A.L.R. 936. Statute of limitations applicable to coupons detached from bonds or other instruments, 62 A.L.R. 270. Statute of limitations in actions or proceedings to secure return of purchase price paid to municipality or other public body for bonds that are invalid, 94 A.L.R. 608. What constitutes a promise in writing to pay money within statutes of limitation, 111 A.L.R. 984. Right to deficiency or personal judgment under mortgage notwithstanding

bar of limitation against action on personal debt, 124 A.L.R. 640. Bar of limitation against action on debt secured by mortgage as affecting suit to foreclose mortgage, 161 A.L.R. 886. What period of limitation governs in an action against a public officer and the surety on his official bond, 18 A.L.R.2d 1176. Liability on statutory bond as within statute of limitations prescribing specific limitation period for liabilities created by statute, 32 A.L.R.2d 1240. Limitation statute applicable to action on bonds of public body or on obligation to collect revenues for their payment, 38 A.L.R.2d 930. When statute of limitations begins to run against action on bond of personal representative, 44 A.L.R.2d 807. When statute of limitations begins to run against note payable on demand, 71 A.L.R.2d 284. Choice of law as to applicable statute of limitations in contract actions, 78 A.L.R.3d 639.