2020 Georgia Code
Title 9 - Civil Practice
Chapter 12 - Verdict and Judgment
Article 4 - Judgment Liens
§ 9-12-93. When Purchased Property Discharged From Lien

When any person has bona fide and for a valuable consideration purchased real or personal property and has been in the possession of the real property for four years or of the personal property for two years, such property shall be discharged from the lien of any judgment against the person from whom it was purchased or against any predecessor in title of real or personal property. Nothing contained herein shall be construed to otherwise affect the validity or enforceability of such judgment, except to discharge such property from any such lien of judgment.

(Laws 1822, Cobb's 1851 Digest, p. 497; Ga. L. 1851-52, p. 238, § 1; Code 1863, § 3502; Code 1868, § 3525; Code 1873, § 3583; Code 1882, § 3583; Civil Code 1895, § 5355; Civil Code 1910, § 5950; Code 1933, § 110-511; Ga. L. 1994, p. 310, § 1.)

- For note on the 1994 amendment of this Code section, see 11 Ga. St. U.L. Rev. 62 (1994).

JUDICIAL DECISIONS

Section not retroactive.

- Act of 1852 from whence this section came, by its phraseology and plain terms, was not intended to have retrospective application to judgments rendered before the statute's passage. Lockhart & Threewits v. Tinley, 15 Ga. 496 (1854).

- This section is not classed with, and does not fall under the classification of a statute of limitation. Chapman v. Akin, 39 Ga. 347 (1869).

- This section has reference to general judgments against the defendant and all the defendant's property, and not to a judgment in rem. Whittle v. Tarver, 75 Ga. 818 (1885).

This section applies whenever there is no obstacle to prevent a levy. Carnes v. American Agric. Chem. Co., 158 Ga. 188, 123 S.E. 18 (1924).

This section applies though the land had been levied on before the purchase, no steps having been taken by the judgment creditor to enforce the levy until after four years' possession by the purchaser. Braswell v. Plummer, 56 Ga. 594 (1876).

When there is a legal impediment to levying, the judgment creditor is not guilty of laches in waiting for the impediment's removal before taking action nor subject to the four years possession of land rule which will divest the lien of a judgment. Cohutta Mills, Inc. v. Hawthorne Indus., Inc., 179 Ga. App. 815, 348 S.E.2d 91 (1986).

Judgment of foreclosure of a mortgage is not a judgment against the thing or property mortgaged, and not being a judgment against the person from whom the claimant purchased the land, it is not within this section. Hays v. Reynolds, 53 Ga. 328 (1874); Redding v. Anderson, 144 Ga. 100, 86 S.E. 241 (1915).

This section is not applicable when a claimant bought property from a third person and had possession for more than two years before the levy of a mortgage execution. Griffin v. Colonial Bank, 7 Ga. App. 126, 66 S.E. 382 (1909).

This section does not apply to a claim based on a partitioning proceeding. Barron v. Lovett, 207 Ga. 131, 60 S.E.2d 458 (1950).

- When the execution had not been recorded as required by former Civil Code 1895, § 2779 (see now O.C.G.A. § 9-12-81), and a transfer of the property was thereafter made to an innocent purchaser without notice of the existence of the judgment and before the actual record of the execution, the judgment never did constitute a lien as against the purchaser upon the particular thus disposed of by the defendant in a writ of fieri facias. Hence, former Civil Code 1895, § 3525 (see now O.C.G.A. § 9-12-93) could have no application to such a case, but referred to cases where the lien of the judgment once existed upon the land after the purchase or possession thereof by a bona fide purchaser, and by lapse of time the property had become discharged from the lien of such judgment. Harvey & Brown v. Sanders, 107 Ga. 740, 33 S.E. 713 (1899).

- Questions as to loss of lien under this section not made in the record can not be considered by the Supreme Court, although argued and insisted on in the Supreme Court. Denny v. Broadway Nat'l Bank, 118 Ga. 221, 44 S.E. 982 (1903).

- Protection afforded by this section does not depend upon the purchaser's having a paper title, but upon the bona fide of the purchase, the payment of a valuable consideration, and possession for four years after judgment. Trice v. Rose, 80 Ga. 408, 7 S.E. 109 (1888); Hardin v. Reynolds, 189 Ga. 589, 6 S.E.2d 913 (1940).

Purchaser in good faith and for valuable consideration shall be relieved of the lien of any judgment against the seller after the purchaser has been in possession, in the case of real property, for a period of four years. Calhoun v. Williamson, 193 Ga. 314, 18 S.E.2d 479 (1942); Barron v. Lovett, 207 Ga. 131, 60 S.E.2d 458 (1950).

Trial court erred in entering summary judgment on an administrator's individual claim as a judgment creditor of the decedent since fact issues remained as to whether O.C.G.A. § 9-12-93 applied, including issues as to the elements of good faith and valuable consideration. Huggins v. Powell, 315 Ga. App. 599, 726 S.E.2d 730 (2012).

- Proving the three requirements places the burden of proof upon the purchaser to prove good faith, but it does not encumber the purchaser with the further burden of making this proof while bearing a badge of fraud solely because the purchaser purchased with knowledge of the existence of the lien. Hardin v. Reynolds, 189 Ga. 589, 6 S.E.2d 913 (1940).

If one purchased before a judgment against one's vendor has been obtained, during which time no attempt is made by the judgment creditor to enforce execution against the land, such purchaser will be protected, under this section, although the purchaser took no deed at the time of the purchase, nor had obtained a deed up to the time of the levy of the execution. Trice v. Rose, 80 Ga. 408, 7 S.E. 109 (1888).

- Claimant's right to be protected as a bona fide purchaser against the lien of the plaintiff's judgment, on account of the claimant's four years' possession of the property, cannot be defeated by a levy without the notice which the law requires to be given. William P. Anderson & Co. v. Chenney, 51 Ga. 372 (1874).

- Lien of the plaintiff's judgment is just as valid against the property in the hands of a bona fide purchaser, until protected by this section, as in the hands of the defendant in execution. Barden v. Grady, 37 Ga. 660 (1868).

Knowledge of the existence of a judgment against the seller does not constitute prima facie evidence of bad faith on the part of the purchaser, but such knowledge is a circumstance which the jury should consider along with other evidence bearing on the question of good faith. Reynolds v. Hardin, 187 Ga. 40, 200 S.E. 119 (1938), later appeal, 189 Ga. 589, 6 S.E.2d 913 (1940).

- When a claim to land is based upon the provisions of this section, and one of the issues in the case is whether the claimant purchased bona fide, charges of the court so stated as to lead the jury to believe that the judgment lien has been divested if the vendor acted bona fide and for a valuable consideration, regardless of the bona fides of the purchaser (claimant), are erroneous and confusing to the jury. Calhoun v. Williamson, 193 Ga. 314, 18 S.E.2d 479 (1942).

Partner to whom copartners conveyed assets to pay firm debts is a quasi trustee for the copartners and accountable to them, and is not such a bona fide purchaser for value of the realty who will be protected under this section when there is no evidence of accounting to eliminate the trust aspect of the conveyance. Westbrook v. Hays, 89 Ga. 101, 14 S.E. 879 (1892).

- That the grantor remained in possession as tenant of the grantee as to the interest conveyed is a circumstance for the consideration of the jury in determining the bona fides of the transaction, but will not per se prevent it from falling within this section. Johnson v. Oliver, 138 Ga. 347, 75 S.E. 245 (1912).

- Under this section, it is competent for the immediate vendee of the defendant in execution to testify affirmatively that the vendee bought and entered in good faith and without any intent to hinder, delay, or defraud creditors of the defendant. Hale v. Robertson & Co., 100 Ga. 168, 27 S.E. 937 (1897).

- If a debtor bona fide conveys land to the debtor's creditor in payment and discharge of an existing debt, this constitutes such a valuable consideration as falls within the provision of this section. Johnson v. Oliver, 138 Ga. 347, 75 S.E. 245 (1912); Calhoun v. Williamson, 193 Ga. 314, 18 S.E.2d 479 (1942).

Four years' possession of land which will divest a lien of a judgment must be during a period of that length of time when the judgment could be lawfully enforced against the land. Dozier v. McWhorter, 113 Ga. 584, 39 S.E. 106 (1901); Carnes v. American Agric. Chem. Co., 158 Ga. 188, 123 S.E. 18 (1924).

- Question on four years' possession of realty under title from the defendant in fieri facias, discharging the property from the lien of judgments, does not turn upon the nature of the defendant's title, but the bona fides of the purchaser; therefore, the fact that the defendant had taken homestead in the land before the sale was properly ruled out. Taylor v. Morgan, 61 Ga. 46 (1878).

- "Possession must be open and notorious, in good faith and exclusion (exclusive)." Taylor v. Morgan, 61 Ga. 46 (1878); Cox v. Prater, 67 Ga. 588 (1881); Page v. Jones, 186 Ga. 485, 198 S.E. 63 (1938).

Possession does not necessarily involve an actual personal residence upon the premises, but such occupancy by visible signs of dominion as will serve to put persons interested upon notice of the adverse claim. Hale v. Robertson & Co., 100 Ga. 168, 27 S.E. 937 (1897); Page v. Jones, 186 Ga. 485, 198 S.E. 63 (1938).

Possession must be actual. Phinizy & Clayton v. Porter, 70 Ga. 713 (1883); Page v. Jones, 186 Ga. 485, 198 S.E. 63 (1938).

- Registration of the deed made to the purchaser will not do in place of actual possession. Carmichael v. Strawn, 27 Ga. 341 (1859).

- There was no error in allowing the defendant to prove that the defendant's predecessor in title took possession without difficulty under the deed made to it, and exercised acts of ownership without protest from any source, and expended large sums of money on the faith of the title. Rosser v. Georgia Pac. Ry., 102 Ga. 164, 29 S.E. 171 (1897).

- Several times it has been decided that the existence of a homestead on land would be sufficient to relieve a plaintiff in fieri facias from the operation of this section. Carnes v. American Agric. Chem. Co., 158 Ga. 188, 123 S.E. 18 (1924).

- Possession under an order setting apart a homestead to the wife of the defendant in execution cannot be tacked to subsequent possessions to protect the purchaser under this section from the seizure of the homestead under an execution based on a debt contracted prior to the adoption of the Ga. Const. of 1868. Smith v. Ezell, 51 Ga. 570 (1874).

Defendant in fieri facias may remain in possession as a tenant of the purchaser and such fact will not per se prevent the possession from being that required by this section, but is a circumstance for the consideration of the jury in determining the bona fides of the transaction or the possession. Page v. Jones, 186 Ga. 485, 198 S.E. 63 (1938).

- Possession of a grantee for four years in easements in certain lots conveyed with fee to other lots, does not discharge fee in former lots from judgment against the grantor. Moses v. Eagle & Phenix Mfg. Co., 62 Ga. 455 (1879).

Pledgee of personal property, who acquires possession of the property in good faith and without actual notice of a judgment against the pledgor, is a "purchaser" within the meaning of this section. Hardeman v. Etheridge (In re Johnson), 112 F. 619 (5th Cir. 1901).

- When the obligee in a bond for the title sells land after judgment against the obligee for part of purchase money, the obligee's vendee is not protected by possession prescribed by this section. Janes v. Patterson, 62 Ga. 527 (1879).

Cited in Sanders v. McAffee, 42 Ga. 250 (1871); Rucker v. Womack, 55 Ga. 399 (1875); Broughton v. Foster, 69 Ga. 712 (1882); Danielly v. Colbert, 71 Ga. 218 (1883); Shuder v. Barlett, 72 Ga. 463 (1884); Rodgers v. Elder, 108 Ga. 22, 33 S.E. 662 (1899); Moate v. Rives, 146 Ga. 425, 91 S.E. 420 (1917); Boyd v. Clark, 44 Ga. App. 645, 162 S.E. 656 (1932); Calhoun v. Williamson, 189 Ga. 65, 5 S.E.2d 41 (1939); Calhoun v. Williamson, 201 Ga. 759, 41 S.E.2d 146 (1947).

OPINIONS OF THE ATTORNEY GENERAL

Discharge provisions applicable to tax liens.

- When real property is purchased by a bona fide purchaser for valuable consideration who then retains possession of the real property for four years, the property is discharged from the lien of any tax execution arising from the failure of the seller to pay ad valorem property taxes on the property. 1980 Op. Att'y Gen. No. 80-59.

- This four-year period operating to discharge the property from the lien of any judgment against the seller applies to the lien of any tax execution against the seller. 1980 Op. Att'y Gen. No. 80-59.

RESEARCH REFERENCES

Am. Jur. 2d.

- 46 Am. Jur. 2d, Judgments, §§ 379, 380, 384.

- 49 C.J.S., Judgments, § 823 et seq.