2021 Georgia Code
Title 44 - Property
Chapter 2 - Recordation and Registration of Deeds and Other Instruments
Article 2 - Land Registration
Part 3 - Examiners
§ 44-2-101. Referral of Case to Examiner; Preliminary Report; Contents; Time of Filing

Upon the filing of a petition as provided in this article, the clerk shall at once notify the judge who shall refer the action to one of the general examiners or to a special examiner. It shall then become the duty of the examiner to make up a preliminary report containing an abstract of the title to the land from public records and all other evidence of a trustworthy nature that can reasonably be obtained by the examiner, which abstract shall contain:

1. Extracts from the records and other matters referred to therein which are complete enough to enable the court to decide the questions involved;
2. A statement of the facts relating to the possession of the lands; and
3. The names and addresses, so far as the examiner is able to ascertain, of all persons interested in the land as well as all adjoining owners showing their several apparent or possible interests and indicating upon whom and in what manner process should be served or notices given in accordance with this article.

   The preliminary report of the examiner shall be filed in the office of the clerk of the superior court on or before the return day of the court as stated in the process unless the time for filing the report is extended by the court.

(Ga. L. 1917, p. 108, § 16; Code 1933, § 60-302; Ga. L. 1982, p. 3, § 44; Ga. L. 2011, p. 99, § 79/HB 24.)

The 2011 amendment, effective January 1, 2013, substituted "the examiner" for "him" near the end of the introductory paragraph and deleted the former last sentence of this Code section, which read: "The report shall be prima-facie evidence of the contents thereof." See Editor's notes for applicability.

- Ga. L. 2011, p. 99, § 101, not codified by the General Assembly, provides that this Act shall apply to any motion made or hearing or trial commenced on or after January 1, 2013.

- For article, "Evidence," see 27 Ga. St. U. L. Rev. 1 (2011). For article on the 2011 amendment of this Code section, see 28 Ga. St. U. L. Rev. 1 (2011).

JUDICIAL DECISIONS

Constitutionality.

- This statute is not violative of the due process clauses of the state and federal constitutions in that the preliminary examination by the examiner is ex parte and before the parties adversely interested are brought into the proceeding, or in that the preliminary report of the examiner is declared to be prima facie evidence of the contents thereof, such report not being binding upon the court or conclusive upon the parties adversely interested in the proceeding. Crowell v. Akin, 152 Ga. 126, 108 S.E. 791, 19 A.L.R. 51 (1921); Saunders v. Staten, 152 Ga. 142, 108 S.E. 797 (1921) (see O.C.G.A. § 44-2-101).

Purpose of the preliminary report is to furnish to the court and to the parties any information likely to affect the title or the possession, and so that any person interested in or likely to be interested in the result of the suit may be notified. Crowell v. Akin, 152 Ga. 126, 108 S.E. 791, 19 A.L.R. 51 (1921).

- An applicant seeking to register the applicant's title under The Land Registration Act may rely upon what was shown in the examiner's preliminary report, without introducing in evidence the conveyances specified therein. McCall v. Asbury, 190 Ga. 493, 9 S.E.2d 765 (1940).

Unless the words "the said report shall be prima facie evidence of the contents thereof," are read out of this statute, it must be held that when the report is put in evidence the party offering the report has offered sufficient proof of the deeds therein referred to. McCall v. Asbury, 190 Ga. 493, 9 S.E.2d 765 (1940) (see O.C.G.A. § 44-2-101).

- Examiner's brief of the evidence in a title registration proceeding fully complied with O.C.G.A. § 44-2-103(b), and a trial court did not err in adopting the report without first reviewing a transcript; if a stenographic report did exist, the registrant never made timely request that the report be filed or direct the trial court's attention to evidence appearing in the report. A A OK, Ltd. v. City of Atlanta, 280 Ga. 764, 632 S.E.2d 633 (2006).

- In order to cast on the applicant for registration the burden of proving the genuineness of a deed shown in the preliminary report of the examiner, an affidavit of forgery must be filed, pursuant to former Code 1933, § 29-415 (see O.C.G.A. § 44-2-23); and written objections, though verified, which aver that certain deeds were forgeries did not amount to an affidavit of forgery. McCall v. Asbury, 190 Ga. 493, 9 S.E.2d 765 (1940).

- On sustaining the exceptions to an examiner's report the case should be referred again to the same or a different examiner for a de novo investigation and report. Such is the procedure adopted by reference in The Land Registration Act; for, under the practice applying generally in cases referred to an auditor, where exceptions of fact are sustained, so as to leave no basis for a judgment or decree, the issues must ordinarily be again referred to an auditor, or submitted to a jury. Holton v. Lankford, 189 Ga. 506, 6 S.E.2d 304 (1939).

Cited in Asbury v. McCall, 192 Ga. 102, 14 S.E.2d 715 (1941).

RESEARCH REFERENCES

Am. Jur. 2d.

- 66 Am. Jur. 2d, Registration of Land Titles, §§ 2, 10.

- 76 C.J.S., Registration of Land Titles, §§ 8, 14, 15.