2021 Georgia Code
Title 44 - Property
Chapter 14 - Mortgages, Conveyances to Secure Debt, and Liens
Article 1 - In General
§ 44-14-12. Deceiving as to Existence of Lien; Making Second Deed of Conveyance; Penalty

Any person who defrauds another in the sale or disposition of any property, either real or personal, by falsely representing that the property is not subject to any lien while knowing that the property is subject to a lien or any person who fraudulently makes a second deed of conveyance to any land or real estate shall be guilty of a misdemeanor.

(Laws 1755, Cobb's 1851 Digest, p. 160; Ga. L. 1859, p. 59, § 1; Code 1863, § 4467; Ga. L. 1865-66, p. 235, § 1; Code 1868, § 4511; Code 1873, § 4599; Code 1882, § 4599; Penal Code 1895, § 669; Penal Code 1910, § 714; Code 1933, § 67-9909.)

- Ga. L. 1962, p. 156, § 1, provides that any provision of Code Sections 44-14-1, 44-14-2, 44-14-4, 44-14-7 through 44-14-12, 44-14-100, and 44-14-160, and Arts. 2 and 3, Ch. 14, of this title which conflicts with T. 11 shall yield to and be superseded by T. 11. See Code Section 11-10-103.

Consent of the holder of the prior lien will not prevent a violation of O.C.G.A. § 44-14-12. Mathis v. State, 14 Ga. App. 241, 80 S.E. 695 (1914).

- Where the state introduces evidence from which the jury is authorized to find that the defendant knowingly sold the prosecutor property upon which there was a prior recorded chattel mortgage, falsely representing to the prosecutor that there were no prior liens on the property, and the prosecutor was forced to pay the chattel mortgage off in order to regain possession of the property, a verdict finding the defendant guilty as charged is authorized by the evidence. Beaty v. State, 89 Ga. App. 478, 79 S.E.2d 831 (1954).

Damage is assumed upon proof of lien. French v. State, 4 Ga. App. 462, 61 S.E. 836 (1908).

Where prior lien not proved, conviction unauthorized. Connor v. State, 8 Ga. App. 688, 70 S.E. 45 (1911).

Indictment under O.C.G.A. § 44-14-12 as evidence of merger of mortgage into warranty deed. Pitts Banking Co. v. Fenn, 160 Ga. 854, 129 S.E. 105 (1925).

- In an action brought by the purchasers of a lot seeking to cancel the developer's security deed based upon alleged fraud, the trial court properly granted summary judgment to the developer as, even if the developer knew of the sale of the lot to the purchasers, such sale did not estop the developer from the developer's claim against the lot pursuant to the developer's security deed; however, the trial court did err by denying the equitable subrogation claim asserted by the purchasers' lender since exercising subrogation did not prejudice the developer in any manner. Byers v. McGuire Props., 285 Ga. 530, 679 S.E.2d 1 (2009), overruled on other grounds by SRM Group, Inc. v. Travelers Prop. Cas. Co. of Am., 308 Ga. 404, 841 S.E.2d 729 (2020).

Court is not required to instruct as to what is a valid lien. Portwood v. State, 18 Ga. App. 502, 89 S.E. 591 (1916).

RESEARCH REFERENCES

Am. Jur. 2d.

- 37 Am. Jur. 2d, Fraud and Deceit, §§ 52, 53, 222.

- 77 C.J.S., Sales, § 43. 91 C.J.S., Vendor and Purchaser, § 63.