2020 Georgia Code
Title 44 - Property
Chapter 14 - Mortgages, Conveyances to Secure Debt, and Liens
Article 2 - Mortgages
§ 44-14-31. Form and Contents of Mortgage

No particular form is necessary to constitute a mortgage. However, a mortgage must clearly indicate the creation of a lien and must specify the debt for which it is given and the property upon which it is to take effect.

(Orig. Code 1863, § 1957; Code 1868, § 1945; Code 1873, § 1955; Ga. L. 1876, p. 34, § 1; Code 1882, § 1955; Civil Code 1895, § 2724; Civil Code 1910, § 3257; Code 1933, § 67-102.)

- For note discussing how an open end or dragnet clause within a deed to secure debt ensnares subsequent purchasers of real property in light of Commercial Bank v. Readd, 240 Ga. 519, 242 S.E.2d 25 (1978), see 30 Mercer L. Rev. 363 (1978).

ANALYSIS

• General Consideration
• Particular Instruments
• Description of Property

General Consideration

Construction of section.

- O.C.G.A. § 44-14-31 is to have a reasonable construction, and is to be construed to facilitate and not to hamper and restrict mortgage liens. It requires that the debt or duty of the mortgagor shall be specified; it does not say that such duty shall be specific and precise. It may be indefinite, as to indemnify a surety for whatever the surety may pay in a certain event, or to hold one harmless for whatever may happen under certain circumstances. The paper must point out what the parties intend. Allen v. J.W. Lathrop & Co., 46 Ga. 133 (1872).

- O.C.G.A. § 44-14-31 is nothing more than what the common law required, and amounts only to saying that the form of the undertaking is immaterial. If the material elements of a mortgage are there - sufficient certainty as to what the parties intend - the paper is good as a mortgage though there be no words of conveyance or any other of the usual forms of a mortgage. Allen v. J.W. Lathrop & Co., 47 Ga. 133 (1872).

No particular form is necessary to constitute a mortgage as long as the instrument clearly indicates the creation of a lien, and specifies the debt for which it is given, and the property upon which it is to take effect. Ray v. Atkins, 205 Ga. App. 85, 421 S.E.2d 317 (1992).

- Matters of forms are no longer, under O.C.G.A. § 44-14-31 considered of any consequence in determining whether or not a given instrument amounts to a mortgage. Mason v. Parker, 101 Ga. 659, 28 S.E. 985 (1897); Hopkins v. West Publishing Co., 106 Ga. App. 596, 127 S.E.2d 849 (1962).

- There is no general rule for determining whether a particular transaction is a mortgage or a conditional sale and every case must be decided on its own circumstances. The legal aspect of the contract in this respect depends upon the intention of the parties, to be ascertained by a consideration of the entire instrument and the surrounding circumstances, and not upon the form of the instrument or the name which the parties may have given to it. Valdosta Plywoods, Inc. v. Belote, 75 Ga. App. 616, 44 S.E.2d 128 (1947).

- Any language to show an intent to mortgage (creation of a lien) is sufficient. Daniel v. State, 63 Ga. App. 12, 10 S.E.2d 80 (1940).

- A mortgage must necessarily be in writing and be duly executed by the party to be bound thereby. Printup v. Barrett, 46 Ga. 407 (1872); Duke v. Culpepper, 72 Ga. 842 (1884); Pierce v. Parrish, 111 Ga. 725, 37 S.E. 79 (1900).

- There must be proper words used in order to create a lien; it is not necessary to use "grant," "bargain," or other technical words. Any language showing an intent to convey or mortgage is sufficient. Horton v. Murden, 117 Ga. 72, 43 S.E. 786 (1903).

- If this is done, the mortgage is sufficient. Moultrie Banking Co. v. Mobley, 170 Ga. 402, 152 S.E. 903 (1930).

A seal is not necessary to the validity of a mortgage, even upon real estate, under O.C.G.A. § 44-14-31, and a mortgage is valid, as between the parties thereto, without any attesting witness and without being recorded. Hawes v. Glover, 126 Ga. 305, 55 S.E. 62 (1906).

Ambiguity may be determined from the nature of the property conveyed. Valdosta Plywoods, Inc. v. Belote, 75 Ga. App. 616, 44 S.E.2d 128 (1947).

- A paper containing all the requisites of a mortgage of personal property, is a mortgage from the date of its execution, under O.C.G.A. § 44-14-31, even though it be not attested by an officer. Nichols v. Hampton, 46 Ga. 253 (1872).

- The question of the sufficiency of description of property in a mortgage is one of law, for the court; that of the identity of the property mortgaged is one of fact, to be decided by the jury. Thomas Ford Tractor, Inc. v. North Ga. Prod. Credit Ass'n, 153 Ga. App. 820, 266 S.E.2d 571 (1980); Chapman v. Bank of Cumming, 154 Ga. App. 739, 270 S.E.2d 4 (1980).

It is only when the terms descriptive of property intended to be conveyed by a written instrument are manifestly too meager, imperfect, or uncertain to serve as adequate means of identification that the court can, as a matter of law, adjudge the description to be insufficient. "Whether such terms will serve to identify the premises is a question of fact, and not of law." Balchin v. Jones, 10 Ga. App. 434, 73 S.E. 613 (1912).

Whether or not a description in a mortgage, of mares, by name, age, and color was sufficient to put the purchaser on notice, was a question for the jury. Reynolds v. Jones, 7 Ga. App. 123, 66 S.E. 395 (1909).

- It makes no difference, under O.C.G.A. § 44-14-31, that notes, to secure which the mortgage was given, are payable in specifics. The value of the specifics may be recovered. Hatcher v. Chancey, 71 Ga. 689 (1883).

- While, under the provisions of O.C.G.A. § 44-14-31, one of the requisites to the validity of a mortgage is that the debt which it is given to secure shall be therein specified, a different rule obtains as to a deed given to secure a debt, and it is not necessary that such a conveyance shall specify the amount of the indebtedness that it is given to secure. McClure v. Smith, 115 Ga. 709, 42 S.E. 53 (1902); Troup Co. v. Speer, 23 Ga. App. 750, 99 S.E. 541, cert. denied, 23 Ga. App. 813 (1919).

Cited in Jackson v. Carswell, 34 Ga. 279 (1866); Burnside v. Terry, 45 Ga. 621 (1872); Cully v. Bloomingdale, Rhine & Co., 68 Ga. 756 (1882); Park v. Snyder, Harris, Bassett & Co., 78 Ga. 571, 3 S.E. 557 (1887); Woodward v. Jewell, 140 U.S. 247, 11 S. Ct. 784, 35 L. Ed. 478 (1891); Cottrell & Sons v. Merchants' & Mechanics' Bank, 89 Ga. 508, 15 S.E. 944 (1892); Bond v. Brewer, 96 Ga. 443, 23 S.E. 421 (1895); Horton v. Murden, 117 Ga. 72, 43 S.E. 786 (1903); Franklin v. Callaway, 120 Ga. 382, 47 S.E. 970 (1904); Rowe v. Spencer, 140 Ga. 540, 79 S.E. 144, 47 L.R.A. (n.s.) 561 (1913); Brown v. Aaron, 20 Ga. App. 592, 93 S.E. 258 (1917); In re W.J. Marshall Co., 291 F. 268 (S.D. Ga. 1923); Wyley Loose Leaf Co. v. Bird, 159 Ga. 246, 125 S.E. 496 (1924); Winn v. Herring-Hall-Marvin Safe Co., 33 Ga. App. 419, 126 S.E. 879 (1925); Webb v. United-American Soda Fountain Co., 59 F.2d 329 (5th Cir. 1932); People's First Nat'l Bank v. Coe Mfg. Co., 67 F.2d 312 (5th Cir. 1933); Blackmar Co. v. Wright Co., 62 Ga. App. 861, 10 S.E.2d 117 (1940); Motor Contract Co. v. Citizens & S. Nat'l Bank, 66 Ga. App. 78, 17 S.E.2d 195 (1941).

Particular Instruments

In general.

- Any instrument creating a lien, specifying the debt to secure which it is given and the property upon which it is to take effect, is to be construed as a mortgage under O.C.G.A. § 44-14-31, notwithstanding that there may be some language in the instrument which would indicate an intention to convey the legal title. Powers & Co. v. Georgia-Florida Grocery Co., 7 Ga. App. 592, 67 S.E. 685 (1910).

A deed of bargain and sale, absolute in its terms, and purporting to convey the fee in consideration of $90.00 in hand paid, passes title; and an entry endorsed upon it and signed by the grantee to the effect that the deed is to be returned to the grantor cancelled, on condition that the grantor shall pay to the grantee $90.00 by a specified time, with interest, does not convert the instrument into a mere mortgage. Jay v. Welchel, 78 Ga. 786, 3 S.E. 906 (1887).

- Promissory notes, reciting that they were given for the purchase-money of certain described chattels, but neither reserving title in the property sold nor containing a mortgage to secure the purchase-money, evidence no lien upon such chattels and confer no right upon the holder to have the holder's debt paid out of funds, in the hands of the sheriff, arising from the sale of such chattels. Bush v. Kimbrell, 25 Ga. App. 424, 103 S.E. 686 (1920).

So-called "security deed" from purchaser to vendor and assumption agreement between bank, vendor, and purchaser met the requirements of O.C.G.A. § 44-14-31 as to the contents of a mortgage. Cherokee Ins. Co. v. Gravitt, 187 Ga. App. 179, 369 S.E.2d 779 (1988).

Bank was not entitled to lien based on note promising to repay debt in full upon sale of debtor's house, as this note did not clearly indicate the creation of a lien, and it did not specify the debt for which it was given and the property upon which it was to take effect, as mortgages must do pursuant to O.C.G.A. § 44-14-31. First Nat'l Bank v. Blackburn, 254 Ga. 379, 329 S.E.2d 897 (1985).

- Language in a trust indenture stating that the debtor "pledged and assigned" the debtor's interest in real property to a bond trustee as security for payment of bonds was sufficient under Georgia law to create a lien, and the indenture granted the bond trustee a mortgage under Georgia law even though it was not in recordable form since it specified the debt owed, accurately described the real property, and evidenced a clear intent to create a lien on the real property. Detention Mgmt., LLC v. UMB Bank, NA (In re Mun. Corr., LLC), 501 Bankr. 119 (Bankr. N.D. Ga. 2013).

- A mortgage which recites that it is given to secure the payment of a promissory note for a specified amount and "such future advances in money, stock, merchandise and plantation supplies" as may be made to the mortgagor by the mortgagee during a given year, is valid only as a mortgage to secure the payment of the note, under O.C.G.A. § 44-14-31. Any indebtedness above the amount of the note is to be treated as an indebtedness on open account. Benton-Shingler Co. v. Mills, 13 Ga. App. 632, 79 S.E. 755 (1913).

A mortgage to secure a note due, as well as any general or special balance due from the mortgagor up to the value of the property, which was described as being of the value of $5,000, is sufficiently definite to be valid as a mortgage for future advances up to $5,000. In re Corbitt, 248 F. 988 (S.D. Ga. 1918).

- An instrument denominated a "bill of sale" may really be a mortgage, if it contains a defeasance clause. Daniels v. State, 43 Ga. App. 779, 159 S.E. 903 (1931).

Where an instrument was executed by a party in the nature of a bill of sale, but the language used showed the intent of the parties to be the execution of a mortgage, it was held to be a mortgage. Stokes v. Hollis, 43 Ga. 262 (1871).

Conditional lien does not become operative where the contingent balance of indebtedness, for the security of which the lien is given, never comes into existence, according to the plain and unambiguous stipulations set forth in the instrument creating the lien. Dingfelder v. Georgia Peach Growers Exch., 184 Ga. 569, 192 S.E. 188 (1937).

Assignment of a bond for title as security for a debt, which clearly expresses its purpose and specifies the debt and the property, is in legal effect a mortgage, and, to be effective against subsequent liens, must be recorded. Fuller v. Atlanta Nat'l Bank, 254 F. 278 (5th Cir. 1918), cert. denied, 249 U.S. 599, 39 S. Ct. 257, 63 L. Ed. 796 (1919).

A retention title contract signed by the purchaser in the trade name by the purchaser in the purchaser's individual name is entitled to record where it otherwise meets the requirements of O.C.G.A. § 44-14-31, and after being duly recorded constitutes constructive notice of the right and interest of the vendor therein as against the purchase of the property at a judicial sale on execution issued against the purchaser in an individual capacity. NCR Co. v. Sikes, 94 Ga. App. 391, 94 S.E.2d 782 (1956).

- Subject only to the statutory exceptions, it has long been the general rule in this state that any mortgage on after-acquired personal property is invalid; this general rule, with only the statutory exceptions, is applicable even though it is sought by an express provision of the instrument to include after-acquired property. Dupriest v. Bennett Bros., 61 Ga. App. 704, 7 S.E.2d 293 (1940).

- An instrument, after reciting that the makers were indebted to F. in an amount named, for which a note had been given, conveyed to F. certain personalty, specifying that it was intended that the title should pass. It provided further, that if the note was not paid when due, F. should take possession of said property, and after advertising, sell it, and apply the proceeds to the debt; that if the note was met as maturity, F. should reconvey by quit-claim deed. The instrument was a mortgage, under O.C.G.A. § 44-14-31, and might be foreclosed as such. Frost v. Allen, 57 Ga. 326 (1876).

The term "pledge," used in an instrument whereby a sawmill and accessories are conveyed to a creditor to secure a debt, is ambiguous and subject to explanation since the pledge of such property to secure a debt is most unusual and practically unheard of; therefore, the testimony of the creditor to the effect that the intention was to create a mortgage is relevant and material and should not be excluded. Valdosta Plywoods, Inc. v. Belote, 75 Ga. App. 616, 44 S.E.2d 128 (1947).

- A writing which purports to create a mortgage lien upon property described as "seven head of mules and horses" is void under O.C.G.A. § 44-14-31 as against one claiming the proceeds of a sale thereof under a subsequently acquired lien by attachment. Reynolds v. Tifton Guano Co., 20 Ga. App. 49, 92 S.E. 389 (1917).

- See Howard v. Rumble, 4 Ga. App. 327, 61 S.E. 297 (1908).

The words "to specify" means "to point out, to particularize, to designate by words one thing or another." Morris & Eckels Co. v. Fulton Nat'l Bank, 208 Ga. 222, 65 S.E.2d 815 (1951).

- In a mortgage description of land, the words, "bounded - by F. M. S." will be construed as meaning "bounded by lands of F. M. S." Smith v. Downing Co., 21 Ga. App. 741, 95 S.E. 19 (1918).

- No formal or exact description of the debt is essential, provided there is a debt between the parties capable of being enforced against the mortgagor or the property mortgaged. Literal exactness is not required. Moultrie Banking Co. v. Mobley, 170 Ga. 402, 152 S.E. 903 (1930).

General descriptions, such as "all the estate, both real and personal, of the grantor," "all my land in a certain town, county, and State," and "all my land, wherever situated," have been held good and sufficient under O.C.G.A. § 44-14-31. Bennett v. Green, 156 Ga. 572, 119 S.E. 620 (1923).

- If the description is altogether general, such that the mortgaged property cannot be separated from the general mass of similar articles, the requirement of the law is not met. Morris & Eckels Co. v. Fulton Nat'l Bank, 208 Ga. 222, 65 S.E.2d 815 (1951).

- In a case where one claims the proceeds of a sale of mortgaged property, under a subsequently acquired lien, the sufficiency of the mortgage description is not governed by the rule which would obtain between the parties to the writing, but such a degree of definiteness is required as would be sufficient to impart record notice to third parties. Reynolds v. Tifton Guano Co., 20 Ga. App. 49, 92 S.E. 389 (1917).

- The words of description in a mortgage may be sufficient to create a lien, and yet be insufficient of themselves to impart notice of the lien which they create. Nussbaum v. Waterman & Co., 9 Ga. App. 56, 70 S.E. 259 (1911); Reynolds v. Tifton Guano Co., 20 Ga. App. 49, 92 S.E. 389 (1917).

Description which is partially untrue does not render the mortgage void, if the part which is correct does not apply generally to other like property and reasonably identifies the property in controversy; but where the part of the description that is true is not so distinctive as reasonably to identify the property mortgaged, a purchaser may be justified in assuming that the property is not covered by the mortgage. Pinson-Brunson Motor Co. v. Bank of Danielsville, 40 Ga. App. 793, 151 S.E. 549 (1930).

- In providing that a mortgage or a conditional bill of sale shall specify the property on which it is to take effect under O.C.G.A. § 44-14-31, the law does not require such a description as will serve to identify the property without aid of parol evidence. A.S. Thomas Furn. Co. v. T. & C. Furn. Co., 120 Ga. 879, 48 S.E. 333 (1904); Hester v. Gairdner, 128 Ga. 531, 58 S.E. 165 (1907); Georgia Novelty Mach. Co. v. Mount, 96 Ga. App. 704, 101 S.E.2d 104 (1957).

- Chattel mortgages were insufficient to impart notice to third parties, where the description of the chattels was too general to specify the exact chattels and no information was given as to their location. Morris & Eckels Co. v. Fulton Nat'l Bank, 208 Ga. 222, 65 S.E.2d 815 (1951).

- A mortgage which described the land as having a frontage of a certain number of feet and extending back a stated distance, and which set out the boundaries on each side, and further described the property as being the same which was conveyed to the mortgagor by a deed of certain date and recorded on a specified date, fully identified the land. In re Corbitt, 248 F. 988 (S.D. Ga. 1918).

- As to the matter of descriptive averments of the land intended to be mortgaged, if the descriptive recitals are so definite as to render the tract capable of being located, the averments are sufficient. Daniel v. State, 63 Ga. App. 12, 10 S.E.2d 80 (1940).

- Where a chattel mortgage is executed which describes the debt intended to be secured as the "aforesaid promissory notes," and it appears that two papers in the form of promissory notes, the one duly executed and attached to and preceding the mortgage, and the other written on the same paper with and immediately preceding the mortgage but unsigned by the maker, such mortgage sufficiently describes the debt intended to be secured to create a lien for the sum of the notes in favor of the mortgagee upon the mortgaged property. Mason v. Parker, 101 Ga. 659, 28 S.E. 985 (1897).

- A mortgage upon real estate given to secure "advances" to be made by the mortgagee to the mortgagor, for the purpose of carrying on the farm of the mortgagor, is not invalid for want of a sufficient description of the debt intended to be secured. Allen v. J.W. Lathrop & Co., 46 Ga. 133 (1872).

- Under O.C.G.A. § 44-14-31, where a mortgage is given to indemnify one who becomes a surety upon a bond in which the mortgagor is principal, a misdescription of the particular bond may be corrected by parol testimony so as to identify the bond described in the mortgage with the one upon which the mortgagee became surety. And the mere misdescription of the bond will not have the effect to render the mortgage invalid as a lien upon the property described, either as to the mortgagor personally or the mortgagor's vendees. Emerson v. Knight, 130 Ga. 100, 60 S.E. 255 (1908).

- As is the case with a mortgage, an instrument creating a lien by bill of sale to secure a debt must specify the debt sought to be secured. Dingfelder v. Georgia Peach Growers Exch., 184 Ga. 569, 192 S.E. 188 (1937).

- Considering the caption and body together, the mortgage in this case covers goods in the brick store of the mortgagor in a certain place on the street named, and between two other stores named. It included all the merchandise in that store and to be in it to supply the place of old goods sold; and the description was sufficient. Welsh v. Lewis & Son, 71 Ga. 387 (1883).

The following description: "Our entire stock of dry goods, boots, shoes, hats, clothing, and notions, and such other goods as are usually kept in a first-class country store," (without any location of the goods, or without any other language of identification), is not a sufficient description under O.C.G.A. § 44-14-31. Jaffrey v. Brown, 29 F. 476 (S.D. Ga. 1886).

- A paper, providing for a lien on a "bay mare," and showing that the mare was purchased by the mortgagor from the mortgagee, is a sufficient description of the property mortgaged under O.C.G.A. § 44-14-31. Nichols v. Hampton, 46 Ga. 253 (1872).

- See Stephens v. Tucker, 55 Ga. 543 (1875).

- A description of land in a mortgage in these terms: "Two hundred and sixty-one acres of land off of lots numbers five, twenty-seven and twenty-eight, in the ninth district of Randolph County," is fatally defective for want of sufficiently definite description, under O.C.G.A. § 44-14-31. Atkins v. Paul, 67 Ga. 97 (1881).

A mortgage on "twelve acres of cotton," without any further description, does not sufficiently specify the property upon which it is to take effect under O.C.G.A. § 44-14-31. Hampton v. State, 124 Ga. 3, 52 S.E. 19 (1905).