2020 Georgia Code
Title 44 - Property
Chapter 2 - Recordation and Registration of Deeds and Other Instruments
Article 1 - Recording
Part 1 - Recording of Deeds and Other Real Property Transactions
§ 44-2-18. Recording Deed Upon Affidavit of Subscribing Witness; Effect of Substantial Compliance
If a deed is neither attested by nor acknowledged before one of the officers named in Code Section 44-2-15, it may be recorded upon the affidavit of a subscribing witness, which affidavit shall be made before any one of the officers named in Code Section 44-2-15 and shall testify to the execution of the deed and its attestation according to law. A substantial compliance with the requirements of this Code section shall be held sufficient in the absence of all suspicion of fraud.
(Laws 1850, Cobb's 1851 Digest, p. 181; Code 1863, § 2669; Code 1868, § 2665; Code 1873, § 2707; Code 1882, § 2707; Civil Code 1895, § 3623; Civil Code 1910, § 4205; Code 1933, § 29-410.)
Law reviews.- For article, "Eleventh Circuit Survey: January 1, 2013 - December 31, 2013: Casenote: The Decline and Fall of Constructive Notice," see 65 Mercer L. Rev. 1203 (2014).
JUDICIAL DECISIONS
Acknowledgement language remains.
- Remedial statute continues to track the language of the pre-2015 recording statute and, therefore, the acknowledgment language remains. This does not mean that the remedial statute is now inapplicable to security deeds that were acknowledged but remain defective under the revised recording statute. Scarver v. Pingora Loan Servicing, LLC (In re Lindstrom), 608 Bankr. 283 (Bankr. N.D. Ga. 2019).
Deed must be attested, acknowledged, or proven by affidavit.
- To admit a deed to record, it must be a perfect deed. It must be attested by two witnesses. It must be attested or acknowledged, if executed in this state, as provided in former Civil Code 1910, § 4202 (see O.C.G.A. § 44-2-15), or it must be probated as provided in former Civil Code 1910, § 4205 (see O.C.G.A. § 44-2-18). Citizens' Bank v. Taylor, 169 Ga. 203, 149 S.E. 861 (1929).
Deeds of realty and personalty may be acknowledged before, as well as attested by, an officer, or proven by the affidavit of a subscribing witness to prepare the deeds for record. Webb v. United-American Soda Fountain Co., 59 F.2d 329 (5th Cir. 1932).
When a recorded security deed did not contain an attestation, but included a closing attorney's affidavit, the deed was not properly attested under O.C.G.A. § 44-2-18 because, while the closing attorney's affidavit indicated that the deed was executed, the affidavit did not make reference to attestation. Gordon v. Terrace Mortg. Co. (In re Hong Ju Kim), Bankr. (Bankr. N.D. Ga. Nov. 28, 2007).
Clerk of court, with witnesses, can authenticate deed.
- Clerk of the superior court alone of the county in which a deed is attested, and in which the deed must be recorded, can, by the clerk's official attestation, with one or more other witnesses, give the deed such authenticity as to admit the deed to record. Bosworth v. Davis, 26 Ga. 406 (1858).
Signature presumed genuine.
- If a deed purports to be executed in the presence of, and is attested by, an officer authorized to make such attestation and another witness, and is recorded, as permitted by this statute, the signature is presumed genuine. But this may be disproved and the signature shown to be a forgery. Hansen v. Owens, 132 Ga. 648, 64 S.E. 800 (1909) (see O.C.G.A. § 44-2-18).
What constitutes substantial compliance.
- When a subscribing witness to a deed which is not officially attested at the time of the deed's execution appears before an officer authorized to officially attest a deed, and on oath testifies to the execution and delivery of the deed according to law, and signs an affidavit setting forth the execution, and the certificate of the officer to the affidavit states that it was "sworn to before" the officer, but omits to certify that the deed was "subscribed" in the officer's presence, the affidavit of probate is a sufficient compliance with the terms of this statute. Willie v. Hines-Yelton Lumber Co., 167 Ga. 883, 146 S.E. 901 (1929) (see O.C.G.A. § 44-2-18).
Even assuming that a creditor's security deed was defective under O.C.G.A. § 44-14-33 by the deed's lack of a notary seal, an affidavit accompanying the deed constituted substantial compliance with the remedial provisions of O.C.G.A. § 44-2-18, curing the alleged defect, and a bankruptcy trustee thus could not avoid the lien under 11 U.S.C. § 544(a). Gordon v. Terrace Mortg. Co. (In re Hong Ju Kim), 571 F.3d 1342 (11th Cir. 2009).
Affidavit signed by a notary testified to both execution and attestation of a security deed and, thus, substantially complied with the requirements of O.C.G.A. § 44-2-18 to cure any defect in attestation under O.C.G.A. §§ 44-14-33 and44-14-61 caused by the notary's signature appearing under the term "acknowledgement." As the affidavit cured the defect, the security deed was eligible for recordation under Georgia law, and its recordation provided constructive notice to subsequent bona fide purchasers and, thus, a bankruptcy trustee could not use the trustee's strong-arm powers to avoid the security deed. Kelley v. Wells Fargo Bank, N.A. (In re Perry), 565 Bankr. 442 (Bankr. M.D. Ga. 2017).
Because the closing attorney was not a subscribing witness, the affidavit failed to substantially comply with the remedial statute to cure the defect in the security deed. It followed that the security deed, as recorded, did not provide constructive notice to subsequent bona fide purchasers and the trustee could therefore avoid the security deed pursuant to 11 U.S.C. § 544(a)(3) and recover the property or the property's value from the defendants pursuant to 11 U.S.C. § 550. Scarver v. Pingora Loan Servicing, LLC (In re Lindstrom), 608 Bankr. 283 (Bankr. N.D. Ga. 2019).
Attestation or acknowledgment as affecting notice.
- Registry of deed not attested, or not legally proved or acknowledged, is not constructive notice to a subsequent purchaser. Citizens' Bank v. Taylor, 169 Ga. 203, 149 S.E. 861 (1929).
For historical discussion of common law and statutory provisions on attestation and acknowledgment, see Webb v. United-American Soda Fountain Co., 59 F.2d 329 (5th Cir. 1932).
Registry of deed not attested, or not legally proved or acknowledged, is not constructive notice A.O. Blackmar Co. v. NCR, 64 Ga. App. 739, 14 S.E.2d 153 (1941).
