2020 Georgia Code
Title 44 - Property
Chapter 5 - Acquisition and Loss of Property
Article 2 - Conveyances
§ 44-5-44. Estoppel From Claiming Adversely to Own Deed

Universal Citation: GA Code § 44-5-44 (2020)

The maker of a deed cannot subsequently claim adversely to his deed under a title acquired after the making thereof. He is estopped from denying his right to sell and convey the property treated in the deed.

(Orig. Code 1863, § 2658; Code 1868, § 2657; Code 1873, § 2699; Code 1882, § 2699; Civil Code 1895, § 3609; Civil Code 1910, § 4189; Code 1933, § 29-111.)

Law reviews.

- For comment on Perkins v. Rhodes, 192 Ga. 331, 15 S.E.2d 426 (1941), see 4 Ga. B.J. 41 (1941). For comment criticizing Franks v. Sparks, 217 Ga. 117, 121 S.E.2d 27 (1961), holding right of entry not alignable or assignable, see 24 Ga. B.J. 363 (1962).

JUDICIAL DECISIONS

ANALYSIS

  • General Consideration
  • Applicability
  • Illustrative Cases
General Consideration

Statute recognizes and declares a fundamental rule of the law of estoppel. Fleming & Co. v. Ray, 86 Ga. 533, 12 S.E. 944 (1891); Morrison v. Whiteside, 116 Ga. 459, 42 S.E. 729 (1902) (see O.C.G.A. § 44-5-44).

What one induces another to regard as true is the truth as between them, if the party who acts has been misled by the conduct or statements of the other. American Freehold Land Mtg. Co. of London, Ltd. v. Walker, 119 Ga. 341, 46 S.E. 426 (1904). See also Baker v. Davis, 127 Ga. 649, 57 S.E. 62 (1907); Gammage v. Perry, 29 Ga. App. 427, 116 S.E. 126 (1923); Bradshaw v. Estill, 157 Ga. 171, 121 S.E. 385 (1924).

Absolute deed divests grantor of right of possession, as well as of legal title, and when grantor is found in possession after delivery of the grantor's deed, it is a fact inconsistent with the legal effect of the deed, and is suggestive that the grantor still retains some interest in the premises. Chandler v. Georgia Chem. Works, 182 Ga. 419, 185 S.E. 787 (1936).

Grantee takes after-acquired title.

- When the language of a deed purports to convey and warrant the full and absolute title, the fact that only the then owned equity of redemption may have been all the title which at that time could and did pass would not change the legal effect of the language of the conveyance itself. Under such language, the grantee not only immediately takes all title that the grantor then owned, but, under such an instrument, the grantee could await the time and tide of future events so as to thereafter appropriate all additional title that the grantor might subsequently acquire. Federal Land Bank v. Bank of Lenox, 192 Ga. 543, 16 S.E.2d 9 (1941).

If a vendor conveys land by deed to a vendee before the vendor has title personally, and afterwards the vendor acquires title, the vendor's subsequent title inures to the benefit of the vendee, and a complete title is vested in the vendee the moment the vendor acquires title. Guy v. Poss, 212 Ga. 724, 95 S.E.2d 682 (1956).

Cited in McIntosh v. Williams, 45 Ga. App. 801, 165 S.E. 854 (1932); Veazey v. Sinclair Ref. Co., 66 Ga. App. 730, 19 S.E.2d 53 (1942); Darling Stores Corp. v. William Beatus, Inc., 68 Ga. App. 869, 24 S.E.2d 805 (1943); Franks v. Sparks, 217 Ga. 117, 121 S.E.2d 27 (1961); Chastain v. Consolidated Credit Corp., 113 Ga. App. 225, 147 S.E.2d 807 (1966); Scarbor v. Scarbor, 226 Ga. 323, 175 S.E.2d 6 (1970); Darden v. Darden, 227 Ga. 647, 182 S.E.2d 480 (1971); United States v. Williams, 441 F.2d 637 (5th Cir. 1971); Harper v. Harper, 241 Ga. 19, 243 S.E.2d 74 (1978); Chattahoochee Holdings, Inc. v. Marshall, 146 Ga. App. 658, 247 S.E.2d 167 (1978).

Applicability

Estoppel by deed applies to maker of deed. It does not ordinarily apply to the grantee. Hughes v. Cobb, 195 Ga. 213, 23 S.E.2d 701 (1942).

Word "deed" refers to deed to property to which grantor has no title nor estate. Shockley v. Storey, 185 Ga. 790, 196 S.E. 702 (1938).

Section applies to mortgages as well as deeds. Federal Land Bank v. Bank of Lenox, 192 Ga. 543, 16 S.E.2d 9 (1941) (see O.C.G.A. § 44-5-44).

Section does not apply to quitclaim deeds. Morrison v. Whiteside, 116 Ga. 459, 42 S.E. 729 (1902); Taylor v. Wainman, 116 Ga. 795, 43 S.E. 58 (1902); Baxter & Co. v. Camp, 126 Ga. 354, 55 S.E. 1036 (1906); Marchant v. Young, 147 Ga. 37, 92 S.E. 863 (1917) (see O.C.G.A. § 44-5-44).

This statute is not extended so as to also cover quitclaim deeds. Federal Land Bank v. Bank of Lenox, 192 Ga. 543, 16 S.E.2d 9 (1941) (see O.C.G.A. § 44-5-44).

Section not applicable to conveyance not covering full title.

- This rule does not apply to a conveyance limited to such right, title, and interest as the grantee has in a designated estate or premises, or a conveyance which on the conveyance's face is only a bare contingency or possibility, or when such a conveyance does not purport to cover the full title. Federal Land Bank v. Bank of Lenox, 192 Ga. 543, 16 S.E.2d 9 (1941) (see O.C.G.A. § 44-5-44).

This statute has no application whatever to year's support for widows provided by the laws of Georgia. Grant v. Sosebee, 169 Ga. 658, 151 S.E. 336 (1929) (see O.C.G.A. § 44-5-44).

Section inapplicable when no representation grantor conveys adversely to representation in earlier deed.

- Doctrines of estoppel by deed and after-acquired title are not applicable when later deed makes no representation, express or implied, that the grantor claims and conveys anything adversely to an express or implied representation made in an earlier deed. ITT Rayonier, Inc. v. Hack, 254 Ga. 324, 328 S.E.2d 542 (1985).

Section inapplicable to grantor's lack of capacity.

- Doctrine of after-acquired property as codified in O.C.G.A. § 44-5-44 was properly found to be inapplicable in an action seeking to set aside a conveyance by a decedent and the decedent's spouse to their child's spouse on the ground that the decedent lacked capacity to execute the deed because the doctrine could not be used to transfer title or to remedy flaws in the legal requirements for the creation of a property interest; the doctrine did not address or cure the invalidity of the conveyance of the decedent's ownership interest as a result of the decedent's lack of capacity. Smith v. Smith, 281 Ga. 380, 637 S.E.2d 662 (2006).

Illustrative Cases

When deed cannot pass title under power of sale, after-inherited interest passes by estoppel.

- If for any reason a deed would not operate to pass title under a power of sale in a will, then if the maker of the deed afterwards inherited an interest in the premises that interest would pass by virtue of the maker's deed, on the principle of estoppel. Parker v. Jones, 57 Ga. 204 (1876); Terry v. Rodahan, 79 Ga. 278, 5 S.E. 38, 11 Am. St. R. 420 (1887).

Seller of lots estopped from asserting claim adverse to purchasers' rights designated on plat.

- When an owner of land sells a part of the land in lots for residential purposes, the sales being made with reference to a plat by which another part of the land is designated as a park, and when the purchasers in buying rely upon the plat, the seller is estopped from asserting a claim adverse to the right of the purchasers, or the purchasers' assigns, to have the land restricted to use as a park and to share such use. Caffey v. Parris, 186 Ga. 303, 197 S.E. 898 (1938).

Benefit of after-acquired title inures to grantee of bond for title interest.

- Conveyance by which the grantor transfers "his bond for title interest" in the land described, together with all of grantor's "right, title, and interest" therein, for the purpose of securing a debt owing by the grantor to the grantee, is one under which the benefit of an after-acquired independent title inures to the benefit of the grantee, and the grantor and those holding under the grantor are estopped thereafter to claim the after-acquired title as against the grantee when the debt so secured remains unpaid. This is true although the conveyance contains no express covenant of warranty. Perkins v. Rhodes, 192 Ga. 331, 15 S.E.2d 426 (1941), for comment, see 4 Ga. B.J. 41 (1941).

When grantor in first security deed reacquires property, junior security deed attaches as first claim.

- When the grantor in a first security deed reacquired the property by purchasing the property at a sale under a power contained in the deed, a junior security deed made to another by the same grantor immediately attached as a first claim upon the property, and constituted an encumbrance thereon as against a subsequent grantee of the purchaser, notwithstanding the second security deed may show upon the deed's face that it is a junior deed. Bowlin v. Hemphill, 180 Ga. 435, 179 S.E. 341 (1935).

Title under first trust deed reacquired by grantor inures to beneficiary of second deed.

- When a property owner gives a deed of trust, reciting on its face that it is a second deed of trust, and when the property is purchased by a third person at a foreclosure sale under the first deed of trust, and through mesne conveyance is reacquired by the grantor, the title so reacquired inures to the beneficiary of the second deed of trust. Federal Land Bank v. Bank of Lenox, 192 Ga. 543, 16 S.E.2d 9 (1941).

Mortgagor of individual property cannot later allege property not mortgagor.

- In a proceeding to foreclose a mortgage, one cannot be permitted to allege that the property so mortgaged by the mortgagor as the mortgagor's own individual property was not the mortgagor's property, but was trust property which the mortgagor had no right to mortgage. Martin v. Citizens' Bank, 177 Ga. 871, 171 S.E. 711 (1933).

When junior mortgage given priority, mortgagee cannot be divested in sale under first lien.

- When a mortgagor creates a lien on property when no title exists in the mortgagor, or where the mortgagor's title is subject to a superior lien, and there is an express or implied representation by the mortgagor whereby the mortgagor asserts the priority of the junior mortgage, the mortgagor would be estopped from buying in the property at a sale under the first lien, so as to divest the junior mortgagee. Federal Land Bank v. Bank of Lenox, 192 Ga. 543, 16 S.E.2d 9 (1941).

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