2021 Georgia Code
Title 23 - Equity
Chapter 3 - Equitable Remedies and Proceedings Generally
Article 3 - Quia Timet
Part 2 - Quia Timet Against All the World
§ 23-3-62. Venue; Contents, Verification and Filing of Petition; Filing in Lis Pendens Docket
- The proceeding in rem shall be instituted by filing a petition in the superior court of the county in which the land is situated.
- The petition shall be verified by the petitioner and shall contain a particular description of the land to be involved in the proceeding, a specification of the petitioner's interest in the land, a statement as to whether the interest is based upon a written instrument (whether same be a contract, deed, will, or otherwise) or adverse possession or both, a description of all adverse claims of which petitioner has actual or constructive notice, the names and addresses, so far as known to the petitioner, of any possible adverse claimant, and, if the proceeding is brought to remove a particular cloud or clouds, a statement as to the grounds upon which it is sought to remove the cloud or clouds.
- With the petition there shall be filed (1) a plat of survey of the land, (2) a copy of the immediate instrument or instruments, if any, upon which the petitioner's interest is based, and (3) a copy of the immediate instrument or instruments of record or otherwise known to the petitioner, if any, upon which any person might base an interest in the land adverse to the petitioner.
- Upon the filing of the petition, the petitioner shall contemporaneously file with the clerk of the court a notice for record in the lis pendens docket pursuant to Code Sections 44-14-610 through 44-14-613.
(Ga. L. 1966, p. 443, § 2.)
Law reviews.- For note discussing problems with venue in Georgia, and proposing statutory revisions to improve the resolution of venue questions, see 9 Ga. St. B.J. 254 (1972).
JUDICIAL DECISIONS
Tax sale of property proper.
- In a purchaser's quiet title action against the executor of a testatrix's estate, the trial court did not err in adopting the report of a special master and in decreeing that fee simple title to the land was vested in the purchaser because the purchaser acquired title to the property by virtue of a tax sale and deed, which was conducted in accordance with O.C.G.A. § 48-4-1 et seq.; a title search showed the testatrix's nephew as holding record title to the property, but out of caution, both the nephew and the executor were served with notice of the tax sale, the tax commissioner met with the executor prior to the sale and offered to accept payment for the back taxes, but the executor failed to do so, and the property was sold to the purchaser, with the overage going to the nephew, and the executor did not timely seek to exercise a right of redemption under O.C.G.A. § 48-4-40. Mann v. Blalock, 286 Ga. 541, 690 S.E.2d 375 (2010).
Quiet title proceeding procedurally deficient.
- In a purchaser's quiet title action against the executor of a testatrix's estate, the trial court did not err in adopting the report of a special master and in decreeing that fee simple title to the land was vested in the purchaser because the trial court was authorized to find that the executor's prior quiet title action failed to convey any interest in the property to the executor and to decree that the judgment entered in that action be removed as a cloud upon the purchaser's title when the prior quiet title proceeding was procedurally deficient; the quiet title petition was not verified as required by O.C.G.A. § 23-3-62(b), it did not include a plat of survey of the land as required by § 23-3-62(c), a lis pendens was not filed contemporaneously with the filing of the petition as required by § 23-3-62(d), the petition was not submitted to an authorized special master as required by O.C.G.A. § 23-3-63, and the record failed to establish service on any party as required by O.C.G.A. § 23-3-65(b). Mann v. Blalock, 286 Ga. 541, 690 S.E.2d 375 (2010).
Owner had granted deeds to secure debt had no legal title to property.
- In a borrower's quiet title action against two lenders, the documents attached to the complaint and answer reflected that the borrower had granted two deeds to secure debt to the lenders, and the borrower therefore did not have legal title to the property absent evidence that the borrower had satisfied the debts; therefore, dismissal of the borrower's petition under O.C.G.A. § 23-3-62 was proper. The trial court was not required to refer the case to a special master prior to dismissal for failure to state a claim. Montia v. First-Citizens Bank & Trust Co., 341 Ga. App. 867, 801 S.E.2d 907 (2017).
Evidence did not establish rightful owner of property.
- Trial court erred in finding that a neighbor was the rightful owner of certain property because there was no evidence to support the conclusion that the neighbor owned the disputed property either by deed or by adverse possession; the legal description of the property contained in the neighbor's deed did not include the disputed property, and since the evidence showed that, at most, the neighbor made a claim to the disputed property for only eighteen years before being challenged by the landowners, the neighbor's claim to have gained prescriptive title to the property through adverse possession under O.C.G.A. §§ 44-5-161 and44-5-165 failed as a matter of law. Washington v. Brown, 290 Ga. 477, 722 S.E.2d 65 (2012).
Evidence supported the trial court's conclusion that landowners did not own the disputed property because the landowners' occasional maintenance and use of the disputed property did not amount to the type of exclusive possession for 20 years that would support a claim for prescriptive title under O.C.G.A. §§ 44-5-161 and44-5-165. Washington v. Brown, 290 Ga. 477, 722 S.E.2d 65 (2012).
Cited in Selby v. Gilmer, 240 Ga. 241, 240 S.E.2d 80 (1977); Middleton v. Robinson, 241 Ga. 174, 244 S.E.2d 7 (1978); Capers v. Camp, 244 Ga. 7, 257 S.E.2d 517 (1979); In re Rivermist Homeowners Ass'n, 244 Ga. 515, 260 S.E.2d 897 (1979); Smith v. Georgia Kaolin Co., 264 Ga. 755, 449 S.E.2d 85 (1994); Woelper v. Piedmont Cotton Mills, Inc., 266 Ga. 472, 467 S.E.2d 517 (1996); Resseau v. Bland, 268 Ga. 634, 491 S.E.2d 809 (1997).
RESEARCH REFERENCES
ALR.
- Statute requiring filing of formal notice of lis pendens in certain classes of cases as affecting common-law doctrine of lis pendens in other cases, 10 A.L.R. 306.
Right of one not in possession to maintain suit to remove cloud on title in case of fraud, 36 A.L.R. 698.
Right to secure new or successive notice of lis pendens in same or new action after loss or cancellation of original notice, 52 A.L.R.2d 1308.
