2020 Georgia Code
Title 44 - Property
Chapter 14 - Mortgages, Conveyances to Secure Debt, and Liens
Article 3 - Conveyances to Secure Debt and Bills of Sale
Part 1 - In General
§ 44-14-60. Deed to Secure Debt as Absolute Deed; Necessity of Bond of Title or to Reconvey

Whenever any person in this state conveys any real property by deed to secure any debt to any person loaning or advancing the grantor any money or to secure any other debt and takes a bond for title back to the grantor upon the payment of the debt or debts or in like manner conveys any personal property by bill of sale and takes an obligation binding the person to whom the property is conveyed to reconvey the property upon the payment of the debt or debts, the conveyance of real or personal property shall pass the title of the property to the grantee until the debt or debts which the conveyance was made to secure shall be fully paid. Such conveyance shall be held by the courts to be an absolute conveyance, with the right reserved by the grantor to have the property reconveyed to him upon the payment of the debt or debts intended to be secured agreeably to the terms of the contract, and shall not be held to be a mortgage. No bond for title or to reconvey shall be necessary where the deed shows upon its face that it is given to secure a debt.

(Ga. L. 1871-72, p. 44, § 1; Ga. L. 1872, p. 47, § 1; Code 1873, § 1969; Code 1882, § 1969; Ga. L. 1884-85, p. 57, § 1; Civil Code 1895, § 2771; Civil Code 1910, § 3306; Ga. L. 1924, p. 56, § 1; Code 1933, § 67-1301.)

- For article comparing rights of grantees holding deeds to secure debts against a bankrupt debtor to those rights of the mortgagee and lienor, see 10 Ga. B.J. 5 (1947). For comment on Chase v. Endsley, 165 Ga. 292, 140 S.E. 876 (1927), see 1 Ga. L. Rev. No. 3 p. 49 (1927). For comment on Hertz Driv-Ur-Self Stations, Inc. v. Arnold, 85 Ga. App. 175, 68 S.E.2d 182 (1952), holding that where a lender takes a bill of sale on personal property to secure debt but authorizes borrower to sell property upon certain conditions, a purchaser without knowledge of the conditions takes free of lender's lien, see 14 Ga. B.J. 472 (1952). For comment on Manchester Motors, Inc. v. Farmers & Merchants Bank, 91 Ga. App. 811, 87 S.E.2d 342 (1955), see 18 Ga. B.J. 82 (1955). For comment on Ruff v. Lee, 230 Ga. 426, 197 S.E.2d 376 (1973), see 8 Ga. L. Rev. 264 (1973).

ANALYSIS

• General Consideration
• Form and Requisites
• Determining Nature of Instrument
• Rights of Grantor
• Rights of Grantee
• Priorities
• Transfer or Assignment
• Foreclosure

General Consideration

Constitutionality.

- O.C.G.A. § 44-14-60 is constitutional, and a foreclosure pursuant to it does not violate procedural due process rights. National Community Bldrs., Inc. v. Citizens & S. Nat'l Bank, 232 Ga. 594, 207 S.E.2d 510 (1974).

- The rights of a creditor whose debt is secured by deed from the debtor are fixed by a statute, which, while declaring that such conveyances pass the title to the vendee, evidently intended them to be treated as mere liens, except as between the contracting parties, when the right of third persons only are to be affected. A deed executed under the provisions of O.C.G.A. § 44-14-60 is absolute in the sense that nothing can intervene to prevent the creditor from collecting the debt if the property really belonged to the vendor and is sufficient for that purpose, and in the sense that the vendor is entitled, upon payment of the debt to have title reconveyed to the vendor. But while deeds executed under that section are expressly declared not to be mortgages, it is plain that the legislature, by declaring that they pass absolute title, intended to create a lien of high dignity. Dixon v. Bond, 18 Ga. App. 45, 88 S.E. 825 (1916).

A purchase-money security deed operates as an absolute conveyance of title until the secured indebtedness is fully paid. It generally takes precedence over simultaneous or prior liens against the purchaser, but not prior liens against the property. Connolly v. State, 199 Ga. App. 887, 406 S.E.2d 222 (1991).

- See In re Lookout Mt. Hotel Co., 50 F.2d 421 (N.D. Ga.), rev'd on other grounds sub nom. Bryan v. Speakman, 53 F.2d 463 (5th Cir. 1931), cert. denied, 285 U.S. 539, 52 S. Ct. 312, 76 L. Ed. 932 (1932).

- Because legal title remains in the grantee until satisfaction of the terms of a security deed, all subsequent conveyances of the real property remain subject to the security deed, unless the grantee releases the property by conveyance or contractually subordinates grantee's rights. Rhodes v. Anchor Rode Condominium Homeowner's Ass'n, 270 Ga. 139, 508 S.E.2d 648 (1998).

- Under O.C.G.A. § 44-14-60, the situation is the same as that which would arise if a vendor made a deed to the vendee and then took a mortgage back to secure the indebtedness. Guin v. Hilton & Dodge Lumber Co., 6 Ga. App. 484, 65 S.E. 330 (1909).

- Generally in Georgia the mortgage passes no title to lands; yet landed securities made in a particular way by O.C.G.A. § 44-14-60, which were once held to be equitable mortgages, do pass title now. Thomas v. Morrisett, 76 Ga. 384 (1886).

- O.C.G.A. § 44-14-60 cannot be construed as operating, on the mere payment of the debt, to divest the title which, by a bill of sale as provided by O.C.G.A. § 44-14-60, has passed from the vendor to the vendee, with the right reserved in the vendor to a reconveyance of the title to vendor on the vendee's payment of the debt, but must necessarily be construed as giving to the vendee only the right to retain the title as security for the debt until the debt is paid, and as operating to terminate this right and to cast on the vendee the obligation, after the debt has been paid, to reconvey the property to the vendor. Grady v. T.I. Harris, Inc., 41 Ga. App. 111, 151 S.E. 829 (1930).

- A security deed is automatically released and satisfied by full payment of the secured indebtedness, and title passes by operation of law back to the grantor or to those claiming under the grantor; the title which thus revests upon payment is in no way affected by liens, encumbrances, or rights which would otherwise attach by virtue of title having been vested in the grantee. Commercial Bank v. Stafford, 149 Ga. App. 736, 256 S.E.2d 69 (1979).

- A bill of sale of personalty to secure a debt stands on the same footing as a deed to realty to secure a debt. The status of each is provided for in O.C.G.A. § 44-14-60. Merchants' & Mechanics' Bank v. Beard, 162 Ga. 446, 134 S.E. 107 (1926).

- Grantee of security deed is not entitled to receive entire proceeds of condemnation award for partial, involuntary taking of property conveyed by the security deed, inasmuch as both grantor and grantee have an interest in property conveyed by security deed, and hence a right to compensation upon condemnation. Harwell v. Georgia Power Co., 250 Ga. 435, 298 S.E.2d 498 (1983).

- Open-end or "dragnet" clauses regarding future advances in deeds to secure debt are valid and enforceable. Tedesco v. CDC Fed. Credit Union, 167 Ga. App. 337, 306 S.E.2d 397 (1983).

A deed to secure debt with an "open-end" clause is not cancelled immediately upon payment of the initial debt. Tedesco v. CDC Fed. Credit Union, 167 Ga. App. 337, 306 S.E.2d 397 (1983).

- Where debtor executed several deeds to secure debt on the 1,357 acres of farmland, since the tobacco allotment on the acres would pass to the lender if that acreage was sold to the lender, unless specifically reserved, it necessarily follows that debtor's interest in the allotment was conveyed to the lender by virtue of the deeds to secure debt. In re Flanders, 45 Bankr. 222 (Bankr. M.D. Ga. 1984).

The expression "personal property," as used in O.C.G.A. § 44-14-60 includes choses in action as well as visible, tangible personal property. Garrard v. Milledgeville Banking Co., 168 Ga. 339, 147 S.E. 766 (1929).

- The plain language of O.C.G.A. § 44-14-60, although not clear, seems to establish that a deed to secure debt is not limited solely to securing debts of the grantor but may secure the debt of another. In re Am. Ventures, Inc., 340 F. Supp. 279 (N.D. Ga. 1971), aff'd, 457 F.2d 974 (5th Cir. 1972).

- Where a bill of sale on an ordinary stock of merchandise is executed merely to secure a debt, the bill of sale will attach to after-acquired portions of the stock as in case of mortgages, whether or not the bill of sale makes express reference to such after-acquired property. Merchants' & Mechanics' Bank v. Beard, 162 Ga. 446, 134 S.E. 107 (1926).

- A security deed executed to convey cultivated farm land as security for debt, does not ordinarily comprehend crops matured or unmatured on the land. Penn Mut. Life Ins. Co. v. Larsen, 178 Ga. 255, 173 S.E. 125 (1934).

- While the language in O.C.G.A. § 44-2-1 "every deed conveying lands," standing alone, is broad enough to embrace security deeds, it is not applicable to security deeds. Randall v. Hamilton, 156 Ga. 661, 119 S.E. 595 (1923).

- Payment in full of the debt renders the trust deed functus officio, and ipso facto extinguishes the power of sale. Thurman v. Lee, 181 Ga. 408, 182 S.E. 609 (1935).

- By virtue of O.C.G.A. § 44-14-60 the sale of land under a fi. fa. against the holder of an equity therein, who has conveyed the legal title to another to secure a debt, and while the legal title is thus held, is void. Dickenson v. Williams, 151 Ga. 71, 105 S.E. 841 (1921).

- A mere general agency to conduct the business of farming will not include the power to execute a security deed. Hargrove v. Armour Fertilizer Works, 31 Ga. App. 465, 120 S.E. 800 (1923).

- Where separate deeds executed under O.C.G.A. § 44-14-60 securing separate promissory notes, but by collateral contract the debtor agrees that each deed shall operate as security for the note described in the other, title to all the realty described in both notes passes, as between the debtor and the creditor, to the creditor, and the security is effectual against other creditors who obtain no lien. Johnson v. Gordon, 102 Ga. 350, 30 S.E. 507 (1897).

Wife may be creditor of her husband and may take from him a deed to land to secure the debt under O.C.G.A. § 44-14-60. Turner v. Woodward, 133 Ga. 467, 66 S.E. 160 (1909).

- A stipulation in an insurance policy that change of title or possession will render the policy void, does not cover a change effected by taking a security deed under O.C.G.A. § 44-14-60. Nussbaum v. Northern Ins. Co., 37 F. 524 (S.D. Ga. 1889).

Where a policy of insurance covering a building on the premises is issued, containing a condition that the policy shall be void if the property should be sold, or the title or possession of the property, or any part thereof, transferred or changed, the holder of the policy conveys under O.C.G.A. § 44-14-60 the property insured, the policy is thereby rendered void. Phoenix Ins. Co. v. Asberry, 95 Ga. 792, 22 S.E. 717 (1895).

- After Chapter 7 debtor executed a note to a lender and also executed a security deed to a grantee, as the lender's nominee, to secure the debt, the Chapter 7 trustee could not avoid the deed because the note and deed were executed together and remained linked via language in the documents that contemplated the agency relationship formed by the designation of the grantee as nominee. Drake v. Citizens Bank (In re Corley), 447 Bankr. 375 (Bankr. S.D. Ga. 2011).

- In this state, in matters of taxation, the law looks to the substantial, beneficial ownership of property conveyed under O.C.G.A. § 44-14-60, rather than to the shadowy, technical ownership of the legal title. Central of Ga. Ry. v. Wright, 124 Ga. 630, 53 S.E. 207 (1906), rev'd on other grounds, 207 U.S. 127, 28 S. Ct. 47, 52 L. Ed. 134 (1907).

- Where a grantee who had previously paid tax executions on property purchases the property after exercising the power of sale in a security deed, any claim for money for the tax executions is merged into the grantee's legal title. Branch v. Grubb, 177 Ga. 663, 170 S.E. 799 (1933).

- In the absence of an attack on a properly witnessed and recorded bill of sale placing upon a party the burden of proving its execution, it was not error to admit the bill of sale without proof of its execution. Watkins v. Muse, 78 Ga. App. 17, 50 S.E.2d 90 (1948).

- In an action to remove a cloud from title, the trial court properly granted summary judgment to a bank and cancelled a recorded deed in favor of a holder, as: (1) the holder could no longer claim any legal title to the subject property once the underlying debt thereto was paid; (2) no evidence of valid renewal or extension of the note existed; and (3) the holder lacked standing to challenge any foreclosure on the debt. Northwest Carpets, Inc. v. First Nat'l Bank, 280 Ga. 535, 630 S.E.2d 407 (2006).

- In a breach of contract and bad faith refusal to pay claim under a policy of lender's title insurance, the court reversed the judgment in favor of the insured and held that the issued date for the purpose of measuring any loss by the insured was the date the insured foreclosed on the subject property, not the date the bank closed on the subject loan. Old Republic Nat'l Title Ins. Co. v. RM Kids, LLC, 337 Ga. App. 638, 788 S.E.2d 542 (2016), cert. denied, No. S16C1843, 2017 Ga. LEXIS 117 (Ga. 2017).

Cited in Tufts v. Little, 56 Ga. 139 (1876); Roland v. Coleman & Co., 76 Ga. 652 (1886); Brice v. Lane, 90 Ga. 294, 15 S.E. 823 (1892); Arrowood v. McKee, 119 Ga. 623, 46 S.E. 871 (1904); Hubert v. Merchants' Bank, 137 Ga. 70, 72 S.E. 505 (1911); McCord v. Hill, 10 Ga. App. 254, 73 S.E. 559 (1912); Wood v. Dozier, 142 Ga. 538, 83 S.E. 133 (1914); Beckcom v. Small, 152 Ga. 149, 108 S.E. 542 (1921); Scott v. Paisley, 158 Ga. 876, 124 S.E. 726 (1924); First Nat'l Bank v. State Mut. Life Ins. Co., 163 Ga. 718, 137 S.E. 53, 51 A.L.R. 1524 (1927); Tarver v. Beneficial Loan Soc'y, 39 Ga. App. 646, 148 S.E. 288 (1929); A.J. Evans Mktg. Agency v. Federated Fruit & Vegetable Growers, Inc., 170 Ga. 30, 152 S.E. 49 (1930); Phoenix Mut. Life Ins. Co. v. Bank of Kestler, 170 Ga. 734, 154 S.E. 247 (1930); Investor's Syndicate v. Thompson, 172 Ga. 203, 158 S.E. 20 (1931); Merchants' & Citizens' Bank v. Bogle, 174 Ga. 612, 163 S.E. 489 (1932); A.J. Evans Mktg. Agency, Inc. v. Federated Growers' Credit Corp., 175 Ga. 294, 165 S.E. 114 (1932); Jones v. Kaplan, 48 Ga. App. 118, 172 S.E. 110 (1933); Piedmont Agrl. Credit Corp. v. Northeastern Banking Co., 51 Ga. App. 571, 181 S.E. 84 (1935); First Nat'l Bank v. Southern Cotton Oil Co., 78 F.2d 339 (5th Cir. 1935); Hicks v. Morris, 183 Ga. 116, 187 S.E. 639 (1936); Bull v. Johnson, 63 Ga. App. 750, 12 S.E.2d 96 (1940); A.O. Blackmar Co. v. NCR Co., 64 Ga. App. 739, 14 S.E.2d 153 (1941); Farmers Fertilizer Co. v. Carter, 83 Ga. App. 274, 63 S.E.2d 245 (1951); Carrollton Prod. Credit Ass'n v. Allen, 93 Ga. App. 150, 91 S.E.2d 93 (1955); Charles S. Martin Distrib. Co. v. First State Bank, 114 Ga. App. 693, 152 S.E.2d 599 (1966); Murray v. Johnson, 222 Ga. 788, 152 S.E.2d 739 (1966); Fourth Nat'l Bank v. Grant, 231 Ga. 692, 203 S.E.2d 517 (1974); Porter v. Mid-State Homes, Inc., 133 Ga. App. 706, 213 S.E.2d 10 (1975); Fourth Nat'l Bank v. Grant, 135 Ga. App. 798, 219 S.E.2d 12 (1975); National Bank & Trust Co. v. Grant, 237 Ga. 337, 227 S.E.2d 372 (1976); Tobler v. Yoder & Frey Auctioneers, Inc., 462 F. Supp. 788 (S.D. Ga. 1978); Peacock v. Owens, 244 Ga. 203, 259 S.E.2d 458 (1979); In re Wilder, 22 Bankr. 294 (Bankr. M.D. Ga. 1982); Cravey v. L'Eggs Prods., Inc., 100 Bankr. 119 (Bankr. S.D. Ga. 1989); McCarter v. Bankers Trust Co., 247 Ga. App. 129, 543 S.E.2d 755 (2000); Stearns Bank, N.A. v. Mullins, 333 Ga. App. 369, 776 S.E.2d 485 (2015).

Form and Requisites

Instrument cannot be of two natures.

- The parties cannot by an agreement make an instrument both retaining title and not retaining title; nor can they by such agreement make a summary statutory proceeding applicable by law to one character of instruments applicable by agreement to another. Wynn & Robinson v. Tyner, 139 Ga. 765, 78 S.E. 185 (1913).

- Where a security deed conveys a certain lease from the lessor to the grantor in such deed, which deed fully describes the lease and the leased premises and contains this provision: "including also all the machinery, equipment, stock in trade and all other assets" of the grantor, the description of such personal property is sufficient. Bennett v. Green, 156 Ga. 572, 119 S.E. 620 (1923).

- It is not necessary that a deed to secure debt shall specify the amount of the indebtedness that it is given to secure. Troup Co. v. Speer, 23 Ga. App. 750, 99 S.E. 541, cert. denied, 23 Ga. App. 813 (1919).

- The trial court, having found a debt to have been forgiven upon a decedent's death, did not err in ordering the decedent's administrator to cancel a deed to secure debt. The litigation did not give notice to the public that the deed had been cancelled; under O.C.G.A. §§ 44-14-3(b) and44-14-60, a grantee of a security deed had the duty to cancel the deed of record when the obligation was satisfied. Mize v. Woodall, 291 Ga. App. 349, 662 S.E.2d 178 (2008).

- A deed executed by a borrower under O.C.G.A. § 44-14-60 to secure a debt infected with usury, and purporting not only to convey title to the lender, but also to confer upon the latter a power of sale, is void. Pottle v. Lowe, 99 Ga. 576, 27 S.E. 145, 59 Am. St. R. 246 (1896). See also McLaren v. Clark, 80 Ga. 423, 7 S.E. 230 (1888); Liles v. Bank of Camden County, 151 Ga. 483, 107 S.E. 490 (1921).

Under the Federal Farm Loan Act of 1916, as amended (former 12 U.S.C. §§ 771, 781, now repealed), a Federal Land Bank has authority and "jurisdiction" to lend money to members of national farm loan associations on security of mortgages on farm lands within its district, and it may in the State of Georgia take as security a deed to secure debt instead of a mortgage, and one who has obtained a loan from such a bank, and others holding under that person, will be estopped to deny the bank's authority. Smith v. Federal Land Bank, 56 Ga. App. 526, 193 S.E. 257 (1937).

Determining Nature of Instrument

Mortgage and deed to secure debt distinguished.

- A deed to secure a debt is not the same as a mortgage. Such a deed conveys title; a mortgage is only a lien. Cole v. Cates, 110 Ga. App. 820, 140 S.E.2d 36 (1964).

- If the title becomes divested from the vendee upon the mere payment of the debt, the instrument created is only a mortgage, and is not a bill of sale to secure a debt and an instrument passing title as provided under O.C.G.A. § 44-14-60. Grady v. T.I. Harris, Inc., 41 Ga. App. 111, 151 S.E. 829 (1930).

A bill of sale to secure debt conveys an outright legal title, as distinguished from a mortgage lien, so as to place such legal title beyond the reach of any lien, statutory or otherwise, in the absence of a recording act treating such as an equitable mortgage. Manchester Motors, Inc. v. F & M Bank, 91 Ga. App. 811, 87 S.E.2d 342 (1955).

Security deeds and trust deeds distinguished. See In re Lookout Mt. Hotel Co., 50 F.2d 421 (N.D. Ga.), rev'd on other grounds sub nom. Bryan v. Speakman, 53 F.2d 463 (5th Cir. 1931), cert. denied, 285 U.S. 539, 52 S. Ct. 312, 76 L. Ed. 932 (1932).

- A bill of sale transferring title to a discount company of certain household furniture of the plaintiff as collateral security for a loan is not a mere pledge, but legal title is in the creditor subject to the right of the debtor to a reconveyance upon the debtor's payment of the debt in compliance with the terms of the contract. Jones v. Brown, 108 Ga. App. 776, 134 S.E.2d 440 (1963).

- A deed absolute on its face and accompanied with possession of property by defendant, could not, under the state of the pleadings, be proved by parol to be only a mortgage given for the purpose of securing a debt. Mitchell v. Fullington, 83 Ga. 301, 9 S.E. 1083 (1889).

- The creation of a trust for the purpose of paying a note is the same in effect as the insertion of a defeasance clause in the instrument; and this being true, such instrument is a mortgage, and not a bill of sale. Ward v. Lord, 100 Ga. 407, 28 S.E. 446 (1897).

- An instrument in the usual form of a security deed under O.C.G.A. § 44-14-60, but containing a clause providing that should the grantor "faithfully perform and keep all the covenants and agreements herein set out, this conveyance shall cease, determine, and be void," is a mortgage, and not a deed. Massillon Engine & Thresher Co. v. Burnett, 19 Ga. App. 487, 91 S.E. 786 (1917).

O.C.G.A. § 44-14-60 not exclusive for conveyance of absolute title to a creditor to secure a debt. Roland v. Coleman & Co., 76 Ga. 652 (1886); Ward v. Lord, 100 Ga. 407, 28 S.E. 446 (1897).

- A failure to comply strictly with the provisions of O.C.G.A. § 44-14-60 does not necessarily make a conveyance given to secure a debt a mortgage. Williamson v. Orient Ins. Co., 100 Ga. 791, 28 S.E. 914 (1897).

- If a deed is not made under O.C.G.A. § 44-14-60, but is made for the purpose of securing a debt, it would be what was known before the passage of the Act embodied in O.C.G.A. § 44-14-60, as an equitable mortgage, conveying the title of the land with the equitable right of redemption. Mitchell v. Fullington, 83 Ga. 301, 9 S.E. 1083 (1889).

- Where a written instrument which purports to be a bill of sale passing the title as security for a debt contains a defeasance clause, the instrument is a mortgage, and the title, which under the language of the instrument purports to pass, does not pass to the vendee. Grady v. T.I. Harris, Inc., 41 Ga. App. 111, 151 S.E. 829 (1930); Personal Fin. Co. v. Bailie, 43 Ga. App. 245, 158 S.E. 436 (1931).

- Where an instrument was described as "this mortgage," it was the intention of the parties that the instrument be construed to be a mortgage. Massillon Engine & Thresher Co. v. Burnett, 19 Ga. App. 487, 91 S.E. 786 (1917).

- A bill of sale of personalty to secure the payment of a debt, which recites that "this is a deed conveying title, and a bond to reconvey is this day given," is not a mortgage, but a conveyance under O.C.G.A. § 44-14-60. Watts v. Wight Inv. Co., 25 Ga. App. 291, 103 S.E. 184 (1920).

- An instrument otherwise in the form of a security deed is not a mortgage merely because it recites that it was given to secure an endorser upon a described note. The relationship of the parties does not make it a mortgage, nor is such recital a defeasance clause whereby the instrument should be treated as a mortgage and not as a security deed. Richey v. First Nat'l Bank, 180 Ga. 751, 180 S.E. 740 (1935).

- Where a warranty deed to secure a debt contains no defeasance clause, and no bond to reconvey is executed contemporaneously therewith - the grantee being given the power to sell the land at public outcry upon default in the payment of the debt - it is not necessary that title be again placed in the grantor in order to bring the property to sale. Penn Mut. Life Ins. Co. v. Donalson, 177 Ga. 84, 169 S.E. 337 (1933).

- A conveyance of real property, which recites that it is given for the purpose of indemnifying the grantee against loss resulting from an outstanding "mortgage" upon other property which the same grantor had conveyed to the same grantee, which contains no habendum clause and which provides that when the mortgage referred to is paid, "then this deed shall be null and void," and which further provides that when this mortgage is paid "this deed shall become null and void and cancelled on the record and surrendered to" the grantor, is not a security deed passing title to the grantee, but is a mortgage only. Camp v. Teal, 44 Ga. App. 829, 163 S.E. 233 (1932).

- Where an instrument was denominated a bill of sale for personalty and was given to secure a debt, as provided in O.C.G.A. § 44-14-60, yet where it contained a stipulation that the title to the personalty was put into the vendee until the debt was paid in full, this stipulation, by its terms, terminated the title to the vendee on the payment of the debt, and, when the debt was paid, the title reverted to the vendor; the instrument, therefore, was a mortgage only, and created only a lien upon the personalty, and passed no title thereto. Hix v. Williams, 42 Ga. App. 143, 155 S.E. 355 (1930).

Because a security deed did not specify a fixed period for repayment or state that the security interest was perpetual under O.C.G.A. § 44-14-80(a), title to the property reverted to the grantor after seven years and the grantee's security interest in the property was lost. Vineville Capital Group, LLC v. McCook, 329 Ga. App. 790, 766 S.E.2d 156 (2014).

- Where the holder of a promissory note, secured by an instrument purporting to be a deed, obtains a judgment thereon, stating in the holder's declaration that the instrument is a deed, the holder will not afterwards be heard to allege that the instrument is a mortgage and not a deed passing title. McCandless v. Yorkshire Guarantee & Sec. Corp., 101 Ga. 180, 28 S.E. 663 (1897).

- Under O.C.G.A. § 44-14-60 a bill of sale of personalty to secure a debt, although it contains a clause to reconvey the property upon the payment of the debt, is not a mortgage, but is an absolute conveyance of the property, and passes title to the same until the debt is fully paid. Hill v. Marshall, 18 Ga. App. 652, 90 S.E. 175 (1916).

Where an instrument recited that, whereas, the subscriber bargained, sold, transferred, and conveyed to C. all the stock of goods in a certain store, etc., that delivery was dispensed with, and that the goods were to remain in the subscriber's possession until default in the payment of the note and interest, during which time the subscriber was to be a bailee for hire, and on default was to deliver the property to C., it was a deed to secure a debt under O.C.G.A. § 44-14-60, and not a chattel mortgage. In re Caldwell, 178 F. 377 (S.D. Ga. 1910).

Rights of Grantor

In general.

- While deeds to secure debt do pass title to the property by which the debt is secured, such a deed does not divest the grantor in such deed of all the grantor's rights and interest in the property. Barnard v. Barnard, 91 Ga. App. 502, 86 S.E.2d 533 (1955).

- The grantor in a deed under O.C.G.A. § 44-14-60 retains the right of possession and the right of redemption by payment of the debt, and consequently an equitable estate in the land which may be assigned or subjected to payment of grantor's debts. Citizens Bank v. Taylor, 155 Ga. 416, 117 S.E. 247 (1923); Uvalda Naval Stores Co. v. Cullen, 165 Ga. 115, 139 S.E. 810 (1927); Citizens & S. Bank v. Realty Sav. & Trust Co., 167 Ga. 170, 144 S.E. 893 (1928); Federal Land Bank v. St. Clair Lumber Co., 58 Ga. App. 532, 199 S.E. 337 (1938); Bell v. Allied Fin. Co., 215 Ga. 631, 112 S.E.2d 609 (1960).

- O.C.G.A. § 44-14-60 contemplates that the grantor might remain in possession of the property. Tift & Co. v. Dunn, 80 Ga. 14, 5 S.E. 256 (1887).

- Where one executes a security deed and remains in possession of the land described in the deed, that person's possession is under the grantee in the security deed and is not adverse to the title, and neither prescription nor the statute of limitations is available as a defense to an action in ejectment founded on the security deed. Thomas v. Stedham, 208 Ga. 603, 68 S.E.2d 560 (1952).

- When one has borrowed a sum of money and conveyed land to the lender as security for the payment of the debt, and received from the grantee a bond conditioned to reconvey on the payment of the debt, the interest pertaining to such land which the grantor thereafter possesses, until the debt is paid, is the right to redeem. Williams & Bessinger v. Foy Mfg. Co., 111 Ga. 856, 36 S.E. 927 (1900).

- The right to redeem is an equitable estate in the land, and may be sold and conveyed, subject to the paramount right of the original grantee to have all of the land appropriated to the payment of grantee's debt. Williams & Bessinger v. Foy Mfg. Co., 111 Ga. 856, 36 S.E. 927 (1900).

- To redeem land, held by absolute legal title as security for a debt under O.C.G.A. § 44-14-60, the debt must be paid or tendered; and, generally, a tender will be effective, though delayed till after the creditor has recovered possession of the premises by action. Broach v. Barfield, 57 Ga. 601 (1876).

- A security deed leaves the grantor no interest in land which can be subjected to levy and sale by a creditor whose judgment was obtained after the deed was executed. Shumate v. McLendon, 120 Ga. 396, 48 S.E. 10 (1904); Bennett Lumber Co. v. Martin, 132 Ga. 491, 64 S.E. 484 (1909); Penn Mut. Life Ins. Co. v. Donalson, 177 Ga. 84, 169 S.E. 337 (1933); Dean v. Andrews, 236 Ga. 643, 225 S.E.2d 38 (1976).

- A security deed to land conveys the legal title to the vendee, and the rights of the vendee cannot be affected by subsequent acts of conveyance by the vendor to third parties. But the vendor has such an equitable interest in the premises conveyed as that the vendor may create a valid second security deed, or lien, subject to the paramount right of the original grantee to have all the land appropriated to the payment of grantee's debt. Cook v. Georgia Fertilizer & Oil Co., 154 Ga. 41, 113 S.E. 145 (1922).

- Before a borrower who has executed a deed under O.C.G.A. § 44-14-60 can have affirmative equitable relief, such as injunction to prevent exercise of the power of sale by the grantee in such security deed, the borrower must pay or tender to such grantee the principal and lawful interest due. Liles v. Bank of Camden County, 151 Ga. 483, 107 S.E. 490 (1921).

- An absolute deed, though made as a security for a debt, passes title under O.C.G.A. § 44-14-60, and a judgment subsequently rendered against the grantor, has no lien on the land which can be enforced by levy and sale until the title can become reinvested by redemption. Groves v. Williams, 69 Ga. 614 (1882).

- A sale under the powers contained in a deed to secure debt divests the grantor of all title, and right of equity of redemption, to the lands described in the deed. Cummings v. Johnson, 218 Ga. 559, 129 S.E.2d 762 (1963).

- Title by virtue of a deed under O.C.G.A. § 44-14-60 was not divested by the subsequent voluntary bankruptcy of the grantor, and grantor's consequent discharge from all debts. Broach v. Barfield, 57 Ga. 601 (1876); Thomas v. Stedham, 208 Ga. 603, 68 S.E.2d 560 (1952).

- Title under O.C.G.A. § 44-14-60 was not divested by the bankrupt causing the land to be set apart in bankruptcy as the bankrupt's homestead exemption. Broach v. Barfield, 57 Ga. 601 (1876).

- A conveyance to secure a debt, made under O.C.G.A. § 44-14-60, passes title, and defeats all right to homestead in the land covered by such a deed. Isaacs v. Tinley, 58 Ga. 457 (1877). See also, Johnson v. Griffin Banking & Trust Co., 55 Ga. 691 (1876); Christopher v. Williams, 59 Ga. 779 (1877); Kirby v. Reese, 69 Ga. 452 (1882); Morgan v. Community Loan & Inv. Co., 195 Ga. 675, 25 S.E.2d 413 (1943).

- The right to contest the validity of a security deed on the ground that the notes secured by the deed contain usury is personal to the maker of the security deed, the maker's representatives and privies. A stranger in interest will not be heard in an attack on a title claimed to be void for usury. Dickenson v. Williams, 151 Ga. 71, 105 S.E. 841 (1921).

- Where the leasehold of the plaintiff is under one who, by making a security deed to a creditor under O.C.G.A. § 44-14-60, has divested himself of the legal title, and the plaintiff has no more than a mere possession of the land upon which the trespass is alleged to have been committed, plaintiff cannot maintain an action for damages to the realty. Flowers Lumber Co. v. Bush, 18 Ga. App. 269, 89 S.E. 344 (1916).

Rights of Grantee

In general.

- The interest which a grantee takes under a deed executed under this law is not absolute in its broadest sense, but is restricted to holding title as security for the debt. For that purpose it places legal title out of the grantor, but on payment of the debt the right of the grantee to hold it ceases. It is a species of security effective from the date of the instrument when duly recorded, and is enforceable against the property by levy and sale under proceedings elsewhere provided for in the Code. Harvard v. Davis, 145 Ga. 580, 89 S.E. 740 (1916); Trust Co. v. Mobley, 40 Ga. App. 468, 150 S.E. 169 (1929).

- One holding a deed to secure debt under O.C.G.A. § 44-14-60 has the option of pursuing the statutory method of suing on the indebtedness, obtaining a judgment, executing a quitclaim deed to the debtor and filing the same for record for purposes of levy, and having the land sold under the judgment or the security deed may be foreclosed as an equitable mortgage. Ryals v. Lindsay, 176 Ga. 7, 167 S.E. 284 (1932).

- The holder of a subsisting security deed has the legal title to the property, and such title may be levied on as the holder's property to satisfy an execution against the holder. Parrott v. Baker, 82 Ga. 364, 9 S.E. 1068 (1889); Richey v. First Nat'l Bank, 180 Ga. 751, 180 S.E. 740 (1935).

A grantee has standing to enforce restrictive covenants against an outsider, and there is no need for the grantee to show actual benefit or injury to enforce this right. Turner Adv. Co. v. Garcia, 252 Ga. 101, 311 S.E.2d 466, cert. denied, 469 U.S. 824, 105 S. Ct. 101, 83 L. Ed. 2d 46 (1984).

- Unlike a mortgagee, who acquires only a lien, the grantee, or holder of a security deed in Georgia acquires the fee simple title to the property, subject to the right of the grantor, who is known as the equity owner, to reacquire the fee simple title upon satisfying the terms of the security deed. Sayers v. Forsyth Bldg. Corp., 417 F.2d 65 (5th Cir. 1969).

- The grantee in a bill of sale, given for the purpose of securing a present, past or future indebtedness, has an interest in the pledged property which will support an action of trover against any one who wrongfully converts the same to the grantee's use, and in a proceeding instituted for that purpose the grantee may elect to take a money verdict, and in such a case where an election to take a money verdict is made, the measure of damages is either the highest proved value of the pledged property between the date of conversion and the trial, or the value of the property at the time of conversion, with interest or hire thereon; but subject, however, to the condition that under neither choice can a recovery be had for more than the amount of the debt for which the property stands as security. Rose City Foods, Inc. v. Bank of Thomas County, 207 Ga. 477, 62 S.E.2d 145 (1950).

- While a bill of sale to secure debt will support an action in trover it is necessary to allege in the petition a default by the maker giving the holder the right of possession, and in the absence of such an allegation, the petition is subject to general demurrer. American Nat'l Bank & Trust Co. v. Davis, 104 Ga. App. 586, 122 S.E.2d 477 (1961).

- A deed to secure a debt passes the legal title under O.C.G.A. § 44-14-60 and will authorize a recovery in ejectment. Dykes v. McVay, 67 Ga. 502 (1881); Todd v. Morgan, 215 Ga. 220, 109 S.E.2d 803 (1959).

- The vendee in a security deed, after the debt matures, can bring ejectment against the vendor upon the title put in the vendee by such deed. Carswell v. Hartridge, 55 Ga. 412 (1875); Biggers v. Bird, 55 Ga. 650 (1876); Dykes v. McVay, 67 Ga. 502 (1881); Bennett v. Green, 156 Ga. 572, 119 S.E. 620 (1923).

- A deed under O.C.G.A. § 44-14-60 passing title to the grantee therein named, for the purpose of securing a debt, can, after the maturity of the debt, be set up as outstanding title to defeat an action of ejectment brought by one claiming under the grantor, if the possession of the defendant is connected with such title. Ashley v. Cook, 109 Ga. 653, 35 S.E. 89 (1900).

- The creditor may institute action thereon and may pray for and obtain a special judgment subjecting the property described in the deed to the payment of the debt. Jewell v. Walker, 109 Ga. 241, 34 S.E. 337 (1899).

- Where creditor has collateral, mortgage, or other form of security upon property of the debtor, failure to accept a lawful tender discharges the lien which was intended to secure payment. Thurman v. Lee, 181 Ga. 408, 182 S.E. 609 (1935).

- In order for a creditor to levy an execution upon property covered by a valid bill of sale made to secure a debt under O.C.G.A. § 44-14-60, the creditor must first redeem the property by paying off in full the security debt, and a levy made without a compliance with such condition precedent is void. Bank of La Grange v. Rutland, 27 Ga. App. 442, 108 S.E. 821 (1921), later appeal, 29 Ga. App. 478, 116 S.E. 49 (1923).

- Where furnace was a chattel attached to the realty of the grantee in the security deed as an "irremovable fixture," and where, after the execution of the security deed, it is detached and carried away by the grantor in said deed, an action will lie for its recovery and the fact that it was subsequently attached to the realty of the grantor in another county and this realty was sold to an innocent purchaser does not deprive the innocent owner of the property merely because some other person may be innocent or ignorant of the plaintiff's ownership. Burpee v. Athens Prod. Credit Ass'n, 65 Ga. App. 102, 15 S.E.2d 526 (1941).

- A deed under O.C.G.A. § 44-14-60 passes the title to the land and the timber growing thereon to the vendee. G. H. Ponder & Co. v. Mutual Benefit Life Ins. Co., 165 Ga. 366, 140 S.E. 761 (1927); Federal Land Bank v. St. Clair Lumber Co., 58 Ga. App. 532, 199 S.E. 337 (1938).

- A duly filed and recorded deed to secure debt is notice of all the rights which the grantee has thereunder. Cummings v. Johnson, 218 Ga. 559, 129 S.E.2d 762 (1963).

- Where a large body of land divided by a county line was conveyed as a whole to secure a debt, with bond for reconveyance, the creditor, after obtaining judgment, could have the entire tract levied on and sold in either county, neither being the county of the residence of the defendant in execution. Cade v. Larned, 99 Ga. 588, 27 S.E. 166 (1896).

Priorities

In general.

- An unrecorded bill of sale to secure debt is uniformly superior to any lien arising by operation of law. Manchester Motors, Inc. v. F & M Bank, 91 Ga. App. 811, 87 S.E.2d 342 (1955).

- Where the owner of property incumbered it with a security deed and a contractor's lien, and thereafter leased a portion of it to a third person for a term of years, the holders of the liens will be compelled to sell such property in such a manner as not capriciously, unnecessarily, and unjustly to interfere with such leasehold interest. Western Union Tel. Co. v. Brown & Randolph Co., 154 Ga. 229, 114 S.E. 36 (1922).

- Where title to real estate is conveyed by a duly recorded deed to secure a debt under O.C.G.A. § 44-14-60, and the grantee takes the deed and advances the money loaned, without notice and before the record of the materialman's lien upon the property, the title thus acquired is superior to such lien. Bennett Lumber Co. v. Martin, 132 Ga. 491, 64 S.E. 484 (1909); Milner v. Wellhouse, 148 Ga. 275, 96 S.E. 566 (1918); Guaranty Inv. & Loan Co. v. Athens Eng'g Co., 152 Ga. 596, 110 S.E. 873 (1922); Rivers v. Williams Bros. Lumber Co., 174 Ga. 262, 162 S.E. 699 (1932).

- A security deed under O.C.G.A. § 44-14-60 is such a conveyance of title as will defeat laborers' liens upon the property embraced therein, if their creation was junior to this instrument, or if such deed was taken bona fide by the grantee and without notice of such liens. Bennett v. Green, 156 Ga. 572, 119 S.E. 620 (1923).

- When property has been conveyed by a grantor to secure a debt, and the grantee in the security deed reduces debt to judgment and files a quitclaim deed for the purpose of levy and sale, and the property is sold by the sheriff under the levy of the execution issued on such judgment, the lessee from the grantor under a lease junior to the security deed can at law be dispossessed by the sheriff for the purpose of placing in possession the purchaser of the property at such sale; and this may be done notwithstanding the fact that the lease is older than the judgment, when it is junior to the security deed. Mattlage v. Mulherin's Sons & Co., 106 Ga. 834, 32 S.E. 940 (1899).

- The title acquired under a deed under O.C.G.A. § 44-14-60 is superior to the right to a year's support, or dower, though such right to a year's support and dower are superior to the lien of a mortgage. When a judgment has been obtained on any indebtedness secured by the deed, before the property can be levied upon and sold, there must be a reconveyance by the grantee to the grantor. Bennett Lumber Co. v. Martin, 132 Ga. 491, 64 S.E. 484 (1909).

- Where the plaintiff in fi. fa. has filed a deed under O.C.G.A. § 44-14-60 for the purpose of having the land levied upon which had been conveyed to plaintiff by plaintiff's debtor as security for the debt, the sheriff, though the fi. fa. issued from a justice's court, may make the levy without making a search for personal property or making an entry upon the fi. fa. that no such property can be found. Bennett v. McConnell, 88 Ga. 177, 14 S.E. 208 (1891).

A fi. fa. issued upon a judgment rendered for a debt secured by a deed made under O.C.G.A. § 44-14-60 cannot be levied upon the realty conveyed as security until after the creditor has executed, filed, and had recorded a deed reconveying the property to the debtor; and a sale by the sheriff to the creditor, the levy having been made after the execution of such deed, but before it was either filed or recorded, is utterly void. National Bank v. Danforth, 80 Ga. 55, 7 S.E. 546 (1887).

- Where a creditor, whose debt was secured by a conveyance of land under O.C.G.A. § 44-14-60, obtained judgment, reconveyed the land to the debtor, and subsequently acquiesced in a sale of the land under an execution in favor of another creditor, and claimed the proceeds of such sale in the sheriff's hands, the lien of the secured creditor attached to such proceeds, and the purchaser at the sheriff's sale acquired an unencumbered title. Marshall v. Hodgkins, 99 Ga. 592, 27 S.E. 748 (1896).

- While it is the better practice, it is not essential, in suits upon notes secured by deed under O.C.G.A. § 44-14-60, to specify or declare a lien on the face of the pleadings or the judgment therein, in order to sell the land under execution by filing a deed reconveying the land, and to subject it to the special contract lien. The proof of the special lien may be made aliunde the face of the judgment or the pleadings on the note sued. Spradlin v. Kramer, 146 Ga. 396, 91 S.E. 409 (1917).

- The court does not err in awarding money to a judgment creditor, upon a levy, where it does not appear that the defendant repaid any of the money borrowed, or that the lender conveyed back the land and filed the deed in the clerk's office. Osborne v. Hill, 91 Ga. 137, 16 S.E. 965 (1893).

- The surety cannot sustain a claim to the property where it is levied on as that of the principal under an execution against the principal in favor of another creditor. Bank of Trion v. Parker, 43 Ga. App. 686, 160 S.E. 128 (1931).

- Trial court erred by granting summary judgment to a judgment lienholder because the lienholder did not establish as a matter of law that the lienholder had any legal or equitable interest in the property at any time after a quitclaim deed was executed; because the record did not establish that the lienholder had any ownership interest in the property upon which the right to seize assets could attach, the trial court erred in finding that the lienholder held a judgment lien against the property. Wells Fargo Bank, N.A. v. Twenty Six Properties, LLC, 325 Ga. App. 662, 754 S.E.2d 630 (2014).

Transfer or Assignment

Rights of transferee.

- A transferee of the grantee named in the security deed occupies the position of such grantee as against the grantor and those claiming under the grantor. Gilliard v. Johnston & Miller, 161 Ga. 17, 129 S.E. 434 (1925).

Assignee of a security deed has legal title to the property, subject to the right of the grantor to have the realty reconveyed to the grantor upon payment of the debt. Regante v. Reliable-Triple Cee of N.J., Inc., 251 Ga. 629, 308 S.E.2d 372 (1983); Leathers v. McClain, 255 Ga. 378, 338 S.E.2d 666 (1986).

- While an assignment of a promissory note, or other evidence of indebtedness, secured by a deed to land executed under the provisions of O.C.G.A. § 44-14-60, does not pass to the assignee a legal title to the land itself, such assignee has an equitable interest in the security effectuated by the deed. Van Pelt v. Hurt, 97 Ga. 660, 25 S.E. 489 (1896).

- Where the transferee of the debt secured by a deed reduces the same to judgment, all that is essential to the enforcement of a special lien in the transferee's favor is the rendition of a general judgment thereon, the conveyance by the vendee in the security deed to the defendant of the lands embraced therein, and proof aliunde that such judgment was rendered upon the secured debt. Lively v. Oberdorfer, 216 Ga. 673, 119 S.E.2d 27 (1961).

- Because a debtor filed a second bankruptcy petition for the express purpose of delaying and frustrating the legitimate efforts of a secured creditor to enforce its right of foreclosure, the debtor was found to have not acted in good faith under 11 U.S.C. § 362(g); thus, cause existed to annul or lift the automatic stay pursuant to 11 U.S.C. § 362(d). GRP Fin. Servs. Corp. v. Olsen (In re Olsen), Bankr. (Bankr. N.D. Ga. Jan. 8, 2007).

- While the transfer of negotiable promissory notes secured by an absolute conveyance of land made under O.C.G.A. § 44-14-60, although the transfer be made by endorsement of the payee without recourse upon the payee, will not discharge the land from the incumbrance placed upon it by the deed, yet a mere written transfer, endorsed upon the deed, of the deed itself and the rights of the grantee therein (the payee of the note) will not pass title to the land out of the grantee and into the endorsee of the notes, as to enable the latter to convey the land back to the debtor who executed the deed to secure the notes. Henry v. McAllister, 93 Ga. 667, 20 S.E. 66 (1894).

- The transfer of a negotiable promissory note secured by a deed under the provisions of O.C.G.A. § 44-14-60 although the transfer be made by endorsement of the payee on the note without recourse upon the payee, will not discharge the land from the encumbrance placed upon it by the deed. Henry v. McAllister, 93 Ga. 667, 20 S.E. 66 (1894); Milner v. Wellhouse, 148 Ga. 275, 96 S.E. 566 (1918).

Where a deed was given under the provisions of O.C.G.A. § 44-14-60 to secure the payment of a promissory note, and the original payee afterwards transferred the note without recourse, at the same time conveying to the assignee the title to the land described in the security deed, the latter was entitled to all the rights of the original payee of the note, and all the remedies for enforcing the same. Hunt v. New England Mtg. Sec. Co., 92 Ga. 720, 19 S.E. 27 (1893); Henry v. McAllister, 93 Ga. 667, 20 S.E. 66 (1894); Gillispie v. Hunt, 145 Ga. 490, 89 S.E. 519 (1916).

Where a vendor of land takes notes for the purchase money, securing their payment by reservation of title personally, which notes the vendor afterwards transfers without recourse and without any transfer of the reserve title to a third party, this operates as a payment of the purchase money, the vendee's equity becomes complete, and the vendor ceases to hold any interest in the land. Cade v. Jenkins, 88 Ga. 791, 15 S.E. 292 (1892); Henry v. McAllister, 93 Ga. 667, 20 S.E. 66 (1894).

Where transferee accepts bond as security for an additional loan subject to that specified in the loan deed, the transferee acquires such an equitable interest in the land as will entitle the transferee on sale of the property under the loan deed to a sufficient amount of the proceeds after discharge of the debt secured by the loan deed to satisfy the transferee's debt; and the transferee's right will attach from the time the transferee receives the transfer, and be superior to a subsequent materialman's lien. Guaranty Inv. & Loan Co. v. Athens Eng'g Co., 152 Ga. 596, 110 S.E. 873 (1922).

Subsequent incumbrance of same property by grantor, whether by security deed or mortgage executed by the grantor named in the prior security deed while the grantor retains an equitable estate in the land, will operate upon that equitable estate. Citizens' Bank v. Taylor, 155 Ga. 416, 117 S.E. 247 (1923).

Foreclosure

Equitable foreclosure.

- Where security deed, executed subsequent to two deeds to secure debt, was made to secure an indebtedness represented by a promissory note, and on its face recited the debt and the purpose to secure it, the creditor could foreclose the deed as an equitable mortgage, although the grantor therein had been discharged as a bankrupt from the payment of debts. Pusser v. A. J. Thompson & Co., 132 Ga. 280, 64 S.E. 75, 22 L.R.A. (n.s.) 571 (1909); Smith v. Farmers' Bank, 165 Ga. 470, 141 S.E. 203 (1928).

A deed to secure debt may be foreclosed as an equitable mortgage. Lively v. Oberdorfer, 216 Ga. 673, 119 S.E.2d 27 (1961).

- Where a deed under seal was made conveying title in order to secure an indebtedness represented by a promissory note, under O.C.G.A. § 44-14-60, and on its face it recited the debt and the purpose to secure it, although suit on the note became barred by the statute of limitations, the creditor could foreclose the deed as an equitable mortgage within 20 years from its execution. Pusser v. A. J. Thompson & Co., 132 Ga. 280, 64 S.E. 75, 22 L.R.A. (n.s.) 571 (1909).

- A conveyance made under O.C.G.A. § 44-14-60 to secure a debt, and which is void as title on account of usury, cannot be foreclosed as an equitable mortgage. Broach v. Smith, 75 Ga. 159 (1885).

- A deed to real estate, given to secure a debt, may be foreclosed by the grantee as a mortgage, notwithstanding a provision therein that it is to be construed as a deed passing title, and not as a mortgage, such provision being one for the benefit of the grantee, which the grantee may waive at the grantee's election. Merrihew v. Fort, 98 F. 899 (N.D. Ga. 1899).

A deed absolute in form, given as security for a loan of money, and executed contemporaneously with the debtor's notes and with a bond to reconvey, given by the grantee, all in accordance with the provisions of O.C.G.A. § 44-14-60 et seq., may be foreclosed as a mortgage, by an action in equity in a federal court, notwithstanding that these provisions give a special remedy at law; for the equity jurisdiction of the federal courts cannot be limited by state legislation. Ray v. Tatum, 72 F. 112 (5th Cir. 1896).

The fact that the holder of a conveyance brings action to foreclose the same as a mortgage in a federal court does not change its character to that of a plain mortgage, which is only a security and passes no title, so as to let in the claim of the widow of the grantor to an allowance for support out of the property, but such an allowance made in proceedings to which the grantee was not a party can apply only to the grantor's equity of redemption. British & Am. Mtg. Co. v. Worrill, 168 F. 120 (N.D. Ga. 1909).

- Trial court erred in ruling that a bank's claims against borrowers and guarantors for breach of promissory notes were barred as improper deficiency actions under O.C.G.A. § 44-14-161(a) due to the bank's failure to seek confirmation after the foreclosure auctions because although the bank conducted and bid at foreclosure auctions of the real property that secured the notes, the transfer of a borrower's right of possession and the borrower's equity of redemption to the bank as the foreclosure sale purchaser never occurred; three days after the foreclosure auctions, the bank notified the borrowers that the bank rescinded any actions taken with respect to foreclosure and that the foreclosures were not and would not be consummated, and by definition, the confirmation procedure had no application when there had been no foreclosure sale. Legacy Cmtys. Group, Inc. v. Branch Banking & Trust Co., 310 Ga. App. 466, 713 S.E.2d 670 (2011), aff'd in part, rev'd in part, 290 Ga. 724, 723 S.E.2d 674, vacated in part, 316 Ga. App. 496, 729 S.E.2d 612 (2012).

OPINIONS OF THE ATTORNEY GENERAL

Grantor retains equitable rights.

- Despite the strong language of O.C.G.A. § 44-14-60, the grantor in a security deed retains certain equitable rights in the land. 1972 Op. Att'y Gen. No. U72-105.