2021 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
§ 44-2-3. Voluntary Deeds or Conveyances of Land; Effect of Recording

Every unrecorded voluntary deed or conveyance of land made by any person shall be void as against subsequent bona fide purchasers for value without notice of such voluntary deed or conveyance; provided, however, that, if the voluntary deed or conveyance is recorded in accordance with Code Section 44-2-1, it shall have priority over subsequent deeds or conveyances to the described land.

(Orig. Code 1863, § 2588; Code 1868, § 2590; Code 1873, § 2632; Code 1882, § 2632; Civil Code 1895, § 3530; Civil Code 1910, § 4110; Code 1933, § 96-205; Ga. L. 1943, p. 400, § 1; Code 1933, § 29-401.1, enacted by Ga. L. 1964, p. 475, § 1.)

- For annual survey of real property law, see 56 Mercer L. Rev. 395 (2004). For article, "Eleventh Circuit Survey: January 1, 2008 - December 31, 2008: Article: Trial Practice and Procedure," see 60 Mercer L. Rev. 1313 (2009).

JUDICIAL DECISIONS

Section applies to subsequent purchasers from grantor's agents, but not others.

- This statute, while including bona fide purchasers from administrators, executors, and others who in effect sell land as agents of the grantor making the voluntary conveyance, does not include purchasers acquiring title from other sources. Harper v. Paradise, 233 Ga. 194, 210 S.E.2d 710 (1974) (see O.C.G.A. § 44-2-3).

- Purchaser of land without actual notice may take free of restrictive covenants contained in an unrecorded contract or deed. Jenkins v. Sosebee, 74 Bankr. 440 (Bankr. N.D. Ga. 1987).

- Voluntary conveyance is one made without any consideration deemed valuable in law to support the conveyance. Clayton v. Tucker, 20 Ga. 452 (1856); Almond v. Gairdner & Arnold, 76 Ga. 699 (1886).

Voluntary conveyance depends upon the intention of the parties, which is to be ascertained by an inquiry into all the facts and circumstances at the time of the conveyance's execution which will throw light upon the question as to whether the deed was a sale or gift. Martin v. White, 115 Ga. 866, 42 S.E. 279 (1902); Shackelford v. Orris, 135 Ga. 29, 68 S.E. 838 (1910).

- Actual payment of the purchase price, before notice, is essential to the maintenance of the claim that one is a bona fide purchaser of property for value and without notice. Rowe v. Gaskins, 148 Ga. 817, 98 S.E. 493 (1919).

Grantee in security deed acting in good faith stands in attitude of bona fide purchaser, and is entitled to the same protection. Roop Grocery Co. v. Gentry, 195 Ga. 736, 25 S.E.2d 705 (1943).

- Bona fide purchaser without notice will be protected against a landlord's lien for rent. Thornton v. Carver, 80 Ga. 397, 6 S.E. 915 (1888).

- Bankruptcy trustee was entitled to avoid a lien on real property under the strong arm powers because a hypothetical bona fide purchaser of the property would have prevailed over the bank's interest as of the date of the commencement of the case; the bank's cancellation of a lien was the last document in the records. Moreover, the bank failed to reinstate the security deed prior to the trustee's intervention as a bona fide purchaser. AFB&T v. Custom Contrs. & Assocs. (In re Custom Contrs. & Assocs.), Bankr. (Bankr. S.D. Ga. Dec. 3, 2009).

Although the debtor executed a deed to secure debt in favor of the defendant that conveyed an interest in certain property prior to the debtor's petition date, the security deed was not recorded by the defendant until after the defendant's petition date. Under Georgia law, an unrecorded voluntary deed or conveyance was void as against a subsequent bona fide purchaser (BFP) for value without notice of such voluntary deed or conveyance and, thus, the trustee, who was a BFP on the date the petition was filed, could avoid the transfer and preserve the transfer for the benefit of the estate. Lubin v. Murphy (In re Murphy), Bankr. (Bankr. N.D. Ga. Oct. 13, 2017).

To sustain voluntary conveyance against subsequent bona fide purchaser, notice to purchaser must be actual. Finch v. Woods, 113 Ga. 996, 39 S.E. 418 (1901); Scott v. Atlas Sav. & Loan Ass'n, 114 Ga. 134, 39 S.E. 942 (1901); Waters v. Wells, 155 Ga. 439, 117 S.E. 322 (1923); Roop Grocery Co. v. Gentry, 195 Ga. 736, 25 S.E.2d 705 (1943).

Constructive notice alone is not sufficient to defeat the rights of a subsequent bona fide purchaser. Herndon v. Kimball, 7 Ga. 432, 50 Am. Dec. 406 (1849); Byrd v. Aspinwall, 108 Ga. 1, 33 S.E. 688 (1899) (decided prior to Orig. Code 1863, § 2588 and under Civil Code 1895, § 3530).

- Registration of a voluntary deed does not constitute such notice to a subsequent bona fide purchaser as will deprive the purchaser of the preference to which the purchaser is entitled. Fleming v. Townsend, 6 Ga. 103, 50 Am. Dec. 318 (1849); Finch v. Woods, 113 Ga. 996, 39 S.E. 418 (1901). For additional cases, see 6 Enc. Dig. 642.

- This statute, providing that "every voluntary deed or conveyance made by any person shall be void as against subsequent bona fide purchasers for value without notice of such voluntary conveyance," while including bona fide purchasers from administrators, executors, and others who in effect sell land as agents of the grantor making the voluntary conveyance, does not include purchasers acquiring title from other sources. Mathis v. Solomon, 188 Ga. 311, 4 S.E.2d 24 (1939) (see O.C.G.A. § 44-2-3).

When an original owner executed a voluntary deed to a life tenant and remainderman, and the life tenant executed a deed in fee simple to a bona fide purchaser without notice, this statute would not pass a superior title or create a superior equity in favor of such a purchaser from the life tenant. Mathis v. Solomon, 188 Ga. 311, 4 S.E.2d 24 (1939) (decided under former Code 1933, § 96-205).

- Under Georgia's recording statute, O.C.G.A. § 44-2-3, the world was on notice of mortgage company's security deed once the deed was recorded; because of that, no one who purchased an interest after recording of that security deed could have been a bona fide purchaser of interest superior to mortgage company's. Gordon v. Novastar Mortg., Inc. (In re Hedrick), 524 F.3d 1175 (11th Cir. 2008), cert. denied, 129 S. Ct. 631, 172 L. Ed. 2d 610 (2008).

- Recording of a contract to sell land took priority over a later recorded deed transferring the disputed land. Parks v. Stepp, 277 Ga. 704, 594 S.E.2d 364 (2004).

- Claim by the Internal Revenue Service that a reformation of a conveyance deed that had failed to describe all of the property that was being transferred had no effect on a prior lien filed by the IRS had no merit because O.C.G.A. § 44-2-3 (on which the IRS was relying) provided only that an unrecorded conveyance was void only against certain subsequent bona fide purchasers and did not mention creditors such as the IRS. Nat'l Assistance Bureau, Inc. v. Macon Mem'l Intermediate Care Home, Inc., F. Supp. 2d (M.D. Ga. June 8, 2009).

- When a security deed executed by Chapter 13 debtors had the correct street address for the collateral but an incorrect legal description, the secured creditor was not entitled to postconfirmation reformation of the deed because the Chapter 13 trustee was a hypothetical bona fide purchaser; there was nothing in the chain of title that would have put the trustee on constructive or inquiry notice of the defect. Midfirst Bank v. Hill (In re Hill), Bankr. (Bankr. S.D. Ga. Sept. 29, 2010).

Cited in Leggett v. Patterson, 114 Ga. 714, 40 S.E. 736 (1902); West v. Wright, 121 Ga. 470, 49 S.E. 285 (1904); Culbreath v. Martin, 129 Ga. 280, 58 S.E. 832 (1907); Stubbs v. Glass, 143 Ga. 56, 84 S.E. 126 (1915); Leachman v. Cobb Dev. Co., 226 Ga. 103, 172 S.E.2d 688 (1970); Pressley v. Jennings, 227 Ga. 366, 180 S.E.2d 896 (1971); Wiggins v. Southern Bell Tel. & Tel. Co., 245 Ga. 526, 266 S.E.2d 148 (1980); Minor v. McDaniel, 210 Ga. App. 146, 435 S.E.2d 508 (1993).

RESEARCH REFERENCES

Am. Jur. 2d.

- 23 Am. Jur. 2d, Deeds, §§ 7, 191. 58 Am. Jur. 2d, Notice, § 18.

- 26A C.J.S., Deeds, § 158.

- Use of diminutive or nickname as affecting operation of record as notice, 45 A.L.R. 557.

Presumption and burden of proof as regards good faith and consideration on part of purchaser or one taking encumbrancer subsequent to unrecorded conveyance or encumbrance, 107 A.L.R. 502.

Rule which makes priority of title depend upon priority of record as applied to record of later instrument in second chain title which antedates record of original instrument in first chain record of which, however, antedated record of original instrument in second chain, 133 A.L.R. 886.

Priority between devisee under devise pursuant to testator's agreement and third person claiming under or through testator's unrecorded deed, 7 A.L.R.2d 544.