2021 Georgia Code
Title 9 - Civil Practice
Chapter 12 - Verdict and Judgment
Article 4 - Judgment Liens
§ 9-12-81. General Execution Docket; When Money Judgment in County of Defendant's Residence Creates Lien Against Third Parties Without Notice

1. The clerk of superior court of each county shall be required to keep a general execution docket in paper or electronic data base form.
2. As against the interest of third parties acting in good faith and without notice who have acquired a transfer or lien binding the property of the defendant in judgment, no money judgment obtained within the county of the defendant's residence in any court of this state or federal court in this state shall create a lien upon the property of the defendant unless the execution issuing thereon is entered upon the execution docket. When the execution has been entered upon the docket, the lien shall date from such entry.

(Ga. L. 1889, p. 106, § 2; Civil Code 1895, § 2779; Civil Code 1910, § 3321; Ga. L. 1921, p. 115, § 1; Code 1933, § 39-701; Ga. L. 1955, p. 425, § 1; Ga. L. 2012, p. 599, § 1-2/HB 665.)

- Requirement that clerk maintain index to general execution docket, § 15-6-61(a)(4)(C).

- For note discussing procedures required to effect a levy of execution, see 12 Ga. L. Rev. 814 (1978).

Former Code 1933, § 110-507 (see now O.C.G.A. § 9-12-80) was not repealed by former Code 1933, § 39-701 (see now O.C.G.A. § 9-12-81), nor was there any conflict between the two sections when the statutes were properly construed. Commercial Credit Co. v. Jones Motor Co., 46 Ga. App. 464, 167 S.E. 768 (1933).

- Purpose of this section is to protect "third parties acting in good faith and without notice," and one who claims the benefit of the statute's provisions must prove that one belongs to such protected class. Eason v. Vandiver, 108 Ga. 109, 33 S.E. 873 (1899); Ray v. Atlanta Trust & Banking Co., 147 Ga. 265, 93 S.E. 418 (1917).

Evident purpose of this section was to regulate the priority of deeds, mortgages, and other liens. Swift & Co. v. Dowling, 151 Ga. 449, 107 S.E. 49 (1921).

This section has no application in a contest between mere judgment liens. Corley-Powell Produce Co. v. Allen, 42 Ga. App. 641, 157 S.E. 251 (1931).

Former Code 1933, § 39-701 (see now O.C.G.A. § 9-12-81), as qualified by former Code 1933, § 39-703 (see now O.C.G.A. § 9-12-83), contemplated judgments rendered in the county of the residence of the defendant and the statute's terms were sufficiently broad to leave the lien of the judgment binding from the date of the judgment on all personal property of the defendant in every county of this state. Bradley v. Booth, 62 Ga. App. 770, 9 S.E.2d 861 (1940).

In order for the judgment to be a lien upon the personal property of the defendant, in whatever county located, the execution issuing thereon shall be entered upon the general execution docket in the county where the judgment was obtained. Bradley v. Booth, 62 Ga. App. 770, 9 S.E.2d 861 (1940).

- Under this statute, it would seem that the creditor's lien becomes effective only upon the entry of execution on the general execution docket. Case law, however, requires an opposite conclusion. In re Tinsley, 421 F. Supp. 1007 (M.D. Ga. 1976), aff'd, 554 F.2d 1064 (5th Cir. 1977).

This section protects only persons who acquire a contractual lien subsequent to a judgment; an older, unrecorded judgment would prevail over a later judgment which had been recorded. In re Tinsley, 421 F. Supp. 1007 (M.D. Ga. 1976), aff'd, 554 F.2d 1064 (5th Cir. 1977).

- Georgia Supreme Court held that under Georgia law, as between the judgment creditor and judgment debtor, a lien on the title to real property is not created until the judgment is recorded, that the date of that lien is the date of recording, and the date of the lien does not relate back to the date the judgment was entered. Synovus Bank v. Kelley, 309 Ga. 654, 847 S.E.2d 592 (2020).

No limitation on application of O.C.G.A. § 9-12-86. - Georgia Supreme Court held that based on the plain language of the text, nothing in O.C.G.A. § 9-12-81, O.C.G.A. § 9-12-82, or O.C.G.A. § 9-12-85 limited the application of O.C.G.A. § 9-12-86 to disputes between bona fide purchasers for value and the judgment creditor. Synovus Bank v. Kelley, 309 Ga. 654, 847 S.E.2d 592 (2020).

- Except when subsequent bona fide purchasers are concerned, this section leaves intact the principle that a common law judgment is a lien upon rendition of judgment. In re Tinsley, 421 F. Supp. 1007 (M.D. Ga. 1976), aff'd, 554 F.2d 1064 (5th Cir. 1977).

- Lien of a general judgment, when execution issues thereon and is properly entered upon the execution docket, binds all of the property of the defendant. Pethel v. Liberal Fin. Co., 86 Ga. App. 773, 72 S.E.2d 563 (1952); Anderson v. Burnham, 12 Bankr. 286 (Bankr. N.D. Ga. 1981).

Entry of a judgment upon a justice of the peace court docket prior to the time when this section took effect was notice to all persons dealing with the defendant of the existence of such judgment, and this notice was sufficient to put a purchaser from the defendant upon inquiry as to what disposition was made of such judgment, and, consequently, upon notice of all facts to which such inquiry, properly conducted, would lead. Dodd & Co. v. Glover, 102 Ga. 82, 29 S.E. 158 (1897).

- As between the parties to a suit, it is not necessary that an execution be entered upon the general execution docket. Ray v. Atlanta Trust & Banking Co., 147 Ga. 265, 93 S.E. 418 (1917).

O.C.G.A. § 9-12-81(b) did not apply to a situation in which the court was asked to rule on the interest of the original parties to a judicial lien and not those of a third party. Natl Serv. Direct, Inc. v. Anderson (In re Nat'l Serv. Direct, Inc.), Bankr. (Bankr. N.D. Ga. Jan. 28, 2005).

As against the rights of third parties acting in good faith, no judgment lien is binding against the property of a defendant located in the county where the judgment is obtained, unless the judgment is entered in the general execution docket as provided by this article but nothing as there provided shall be construed to affect the validity or force of any deed, or mortgage, or judgment, or other lien of any kind as between the parties thereto. Roberson v. Roberson, 199 Ga. 627, 34 S.E.2d 836 (1945).

In a declaratory judgment action brought by the purchasers of certain real property to remove a cloud from the purchasers' title asserted by a bank who had obtained a writ of fieri facias (the lien) against one of the sellers, the trial court erred by granting summary judgment to the bank and holding that the purchasers had a duty to inquire as to prior names used by that seller. The purchasers provided expert testimony that the lien using that seller's married name had not been recorded and, in turn, the bank failed to present any evidence to dispute the affidavits of the purchasers' witnesses or to cite to any authority which imposed a duty on the purchasers or the purchasers' agents to investigate prior or alternative names of that seller when nothing occurred prior to or during the closing that created a duty to inquire and that seller had falsely sworn under oath that the property was not subject to any encumbrances or liens and that there were no outstanding judgments. Gallagher v. Buckhead Cmty. Bank, 299 Ga. App. 622, 683 S.E.2d 50 (2009), cert. denied, No. S09C2080, 2010 Ga. LEXIS 2 (Ga. 2010).

- When a divorce decree divided real property between former spouses, and provided that certain anticipated payments by the former husband of marital debts be deducted from the former wife's share of proceeds from the sale of the property, a third-party holder of a security deed from the former wife conveying to him her undivided half interest in the real property is a bona fide purchaser for value without notice, and his interest by virtue of the security deed is superior to the interest of the former husband under the divorce decree. Eavenson v. Parker, 261 Ga. 607, 409 S.E.2d 520 (1991).

Removal of a defendant from the county in which a judgment was rendered against the defendant will not render necessary entering upon the general docket, of the county to which the defendant removes, an execution issued upon such judgment. Smith v. Howell, 101 Ga. 771, 29 S.E. 31 (1897).

- Book kept by the clerk as a general execution docket was a substantial compliance with this section; and if in a given instance an execution was improperly indexed, and third persons were thereby misled to their injury, their remedy, if any, would be against the clerk; but the fact that the execution was so improperly entered would not prevent the entry from operating as legal notice. Merrick v. Taylor, 14 Ga. App. 81, 80 S.E. 343 (1913).

- Lien of judgments, to which this section applies, dates, as to bona fide conveyances by the debtor to third persons, only from the time the executions issuing thereon shall be entered upon the general execution docket, unless such entry is made within ten days after the judgments were rendered. Bailey v. Bailey, 93 Ga. 768, 21 S.E. 77 (1894).

- Whether or not a lis pendens has been filed, a lien of judgment does not attach to the property of a defendant so as to bind innocent purchasers unless and until execution is issued thereon and entered upon the general execution docket. Evans v. Fulton Nat'l Mtg. Corp., 168 Ga. App. 600, 309 S.E.2d 884 (1983).

- This section does not contemplate or require that a distress warrant for rent shall be entered upon the general execution docket. Jones v. Howard, 96 Ga. 752, 22 S.E. 291 (1895).

- Where debtor under Chapter 11 bankruptcy objected to the status of a creditor's claim as a secured claim on the grounds that the creditor's judgment was never perfected by recording on the general execution docket in the county where the debtor was located as required under Georgia law, O.C.G.A. § 9-12-81(b), the bankruptcy court noted that although the creditor had registered the creditor's judgment (obtained in a federal district court in California) in the Southern District of Georgia, 28 U.S.C. § 1962 did not override the requirements of Georgia law; accordingly, the bankruptcy court sustained the debtor's objection to the claim's secured status and allowed the claim only as a general unsecured claim. RCF Techs., Inc. v. Rubbercraft Corp. (In re RCF Techs., Inc.), 285 Bankr. 531 (Bankr. S.D. Ga. 2001).

- Failure of the plaintiff in fieri facias to have a judgment obtained entered upon the general execution docket provided for by statute presents no reason for rejecting the fieri facias when offered in evidence upon the trial of a claim to property upon which the fieri facias had been levied. Rice v. Warren, 91 Ga. 759, 17 S.E. 1032 (1893).

- When there has been a failure to record a writ of fieri facias within ten days from the rendition of the judgment upon which it issued, as prescribed in this section, and thereafter the defendant in fieri facias before the registry of the execution, sells land to an innocent purchaser for value who has no knowledge or notice of the existence of the judgment, the title to the land passes to such purchaser from the lien of the judgment. This is true notwithstanding that the purchaser made no investigation or inquiry as to the existence of such a lien before paying for and receiving the purchaser's deed to the property. Harvey & Brown v. Sanders, 107 Ga. 740, 33 S.E. 713 (1899); State Bank v. Moore, 148 Ga. 198, 96 S.E. 225 (1918).

- As between a purchaser and plaintiff in a prior judgment, which was not followed by a duly recorded execution the burden is upon the purchaser to prove that the purchaser acted in good faith and without notice in the transaction in order to relieve the property from the lien of the judgment. Pinson-Brunson Motor Co. v. Bank of Danielsville, 40 Ga. App. 793, 151 S.E. 549 (1930).

- When one obtains a money judgment in a tort action in the superior court and fails to have an execution issued and recorded on the general execution docket in accordance with the requirements of this section, the lien of the judgment is lost as against property conveyed by the defendant in judgment to a purchaser in good faith and without notice during the pendency of the suit in which the judgment was rendered, and subsequently to the rendition of the judgment, but before the issuance and entry of an execution on the general execution docket as required by this section. Jackson v. Faver, 210 Ga. 58, 77 S.E.2d 728 (1953).

- Fact that the attorneys for the purchaser, and therefore the purchaser, have actual knowledge of the pendency of a suit for a money judgment in a tort action will not charge them with notice of the rendition of a judgment in that case, when no execution had been issued and recorded as provided by the statute, and they will not be chargeable with negligence, and therefore with notice, because they did not examine the papers in the suit, examine the bar docket, examine the minutes of the court, or make inquiry of the plaintiff's counsel in that case, for: "What the law requires to put innocent third parties upon notice of the existence of a judgment lien is an entry of the execution upon a certain record in the office of the clerk of the superior court. When there is a failure to make such record, third parties are not charged with any duty to make an investigation or inquiry in relation to the existence of such a lien against their vendor." Jackson v. Faver, 210 Ga. 58, 77 S.E.2d 728 (1953).

- When an execution issuing upon a judgment against the principal and several sureties, rendered in the superior court, is not placed upon the general execution docket in accordance with the provisions of this section and several months after the rendition of such judgment the execution is levied upon the property of one of the sureties, the latter surety is not discharged from liability because of the failure of the creditor to have the execution so placed upon the execution docket, thereby permitting to be lost the lien of the judgment on the property of the principal and other sureties by reason of their having disposed of their property subject to such judgment, after the judgment's rendition, to purchasers acting in good faith and without notice of such judgment. Williams v. Kennedy, 134 Ga. 339, 67 S.E. 821 (1910).

- Inasmuch as this section appointed a place, to-wit a general execution docket, whereon executions issued upon judgments must be entered in order to affect purchasers from defendants therein with notice of such judgments, the levy of an execution not duly entered on such docket, though followed by a claim and thus giving rise to a pending case, did not charge with constructive notice of the judgment one who, before the registration of the execution upon the execution docket and without actual notice of the judgment, bought in good faith from a previous vendee of the defendant in execution. Moody v. Millen, 103 Ga. 452, 30 S.E. 258 (1898).

Improper issuance and improper recording of executions on the general execution docket on the same day judgment was entered does not constitute constructive notice of the existence of a lien against the property to a third-party transferee for value. Kilgore v. Buice, 229 Ga. 445, 192 S.E.2d 256 (1972).

- Conveyance made by absolute deed, whether intended to secure a debt or for full ownership, and whether made before or after the judgment was rendered, are not affected by the judgment if the deed was actually recorded before the execution based on the judgment was entered on the general execution docket, such entry having been delayed until after the ten days' limit had expired. Bailey v. Bailey, 93 Ga. 768, 21 S.E. 77 (1894).

- Older of two judgments against the same defendant has priority over the younger, as to a fund arising from a sale of the defendant's property, though the execution issued upon the younger may have been duly entered upon the general execution docket, and the execution issued upon the older has never been entered upon that docket at all. Donovan v. Simmons, 96 Ga. 340, 22 S.E. 966 (1895); Griffith v. Posey, 98 Ga. 475, 25 S.E. 515 (1896).

- All judgments entered on verdicts rendered at the same term of court are deemed of equal date. As between liens of judgments rendered at different terms upon property of the defendant, the senior judgment has priority, though the execution issued upon the younger judgment may have been duly entered on the general execution docket as provided for in this section and no execution has been issued upon the older judgment. Eads v. Southern Sur. Co., 178 Ga. 348, 173 S.E. 163 (1934).

- Shares of corporate stock, which were choses in action, cannot be subjected to levy and sale except by compliance with the legal formula prescribed in former Civil Code 1910, § 6035 (see now O.C.G.A. § 9-13-58). Fourth Nat'l Bank v. Swift & Co., 160 Ga. 372, 127 S.E. 729 (1925).

- When a growing crop was mortgaged to secure advances with which to make the crop, and after the crop's maturity was sold under a common law execution against the mortgagor, this execution was entitled to the proceeds of the sale as against an execution issued upon a foreclosure of the mortgage, it appearing that the common law execution had been entered upon the general execution docket before the mortgage was given, and the mortgagee not being a person entitled to a statutory lien upon the crop for such advances. Stewart v. Kramer, 99 Ga. 125, 24 S.E. 871 (1896).

- Lien of a judgment duly recorded on the general execution docket is, after the maturity of a growing crop of the defendant in fieri facias, superior to the title thereto obtained through a bill of sale to secure a debt, executed by the defendant in fieri facias to a third person after the judgment is recorded, but before the crop is mature. Hixon v. Callaway, 2 Ga. App. 678, 58 S.E. 1120 (1907).

- Fact that a motion for a new trial was filed by the defendant in judgment after the period within which this section requires the entry of the execution on the general execution docket did not extend the time prescribed for entry of the execution. State Bank v. Moore, 148 Ga. 198, 96 S.E. 225 (1918).

Money judgment for principal and interest entered on the general execution docket as to principal only operates as a lien only as to the amount so entered. Washington Loan & Banking Co. v. Guin, 236 Ga. 779, 225 S.E.2d 318 (1976).

- When a judgment is rendered, if the execution issuing thereon is entered upon the general execution docket in the office of the clerk of the superior court of that county the lien of the judgment upon the property of the defendant is binding from the time the judgment is rendered. Postell v. Val-Lite Corp., 78 Ga. App. 199, 51 S.E.2d 63 (1948).

- It is not necessary that the verdict of a jury shall provide for the establishment of a lien to follow the judgment since the lien follows a money judgment for an amount certain as a matter of law and this applies to a judgment for alimony. Roberson v. Roberson, 199 Ga. 627, 34 S.E.2d 836 (1945).

- When the jury provides permanent alimony for the wife in an amount capable of exact determination, a provision in the verdict that it be discharged by designated weekly payments does not prevent the court by the court's decree from providing a lien for the protection of such judgment. Roberson v. Roberson, 199 Ga. 627, 34 S.E.2d 836 (1945).

- Trial court erred in granting summary judgment for a creditor in a dispute over lien priorities as the creditor did not show that the creditor was a member of the class protected by O.C.G.A. § 9-12-81(b); the creditor had an ownership report prepared before making a loan to an ex-husband and taking the property as security, which did not provide information as to liens, and a search of the county deed records as of the date specified on the ownership report would have put the creditor on notice of an ex-wife's recorded judgment. Brandenburg v. Navy Fed. Credit Union, 276 Ga. App. 859, 625 S.E.2d 44 (2005).

Cited in Crosby v. King Hdwe. Co., 109 Ga. 452, 34 S.E. 606 (1899); Dozier v. McWhorter, 113 Ga. 584, 39 S.E. 106 (1901); Peagler v. Davis, 143 Ga. 11, 84 S.E. 59, 1917A Ann. Cas. 232 (1915); Swift & Co. v. Dowling, 151 Ga. 449, 107 S.E. 49 (1921); Burt v. Gooch, 37 Ga. App. 301, 139 S.E. 912 (1927); Fountain v. Bryan, 176 Ga. 31, 166 S.E. 766 (1932); Northern Fin. Corp. v. Hollingsworth, 52 Ga. App. 337, 183 S.E. 73 (1935); Beam v. Rome Hdwe. Co., 184 Ga. 272, 191 S.E. 126 (1937); Tanner v. Wilson, 184 Ga. 628, 192 S.E. 425 (1937); Bradley v. Booth, 62 Ga. App. 770, 9 S.E.2d 861 (1940); Franklin v. Mobley, 73 Ga. App. 245, 36 S.E.2d 173 (1945); Jackson v. Faver, 210 Ga. 58, 77 S.E.2d 728 (1953); Lee Rubber & Tire Corp. v. Seaboard Produce Co., 106 Ga. App. 708, 128 S.E.2d 73 (1962); Stephens v. Stephens, 220 Ga. 22, 136 S.E.2d 726 (1964); Little River Farms, Inc. v. United States, 328 F. Supp. 476 (N.D. Ga. 1971); Watkins v. Citizens & S. Nat'l Bank, 163 Ga. App. 468, 294 S.E.2d 703 (1982); Bank S. v. Roswell Jeep Eagle, Inc., 200 Ga. App. 489, 408 S.E.2d 503 (1991); Ragsdale v. Blaw Knox Corp. (In re Hydro-Chem Processing, Inc.), 190 Bankr. 129 (Bankr. N.D. Ga. 1995); Wright v. Brown, 336 Ga. App. 1, 783 S.E.2d 405 (2016).

Tax lien is created by the issuance of a tax execution, or writ of fieri facias, and such lien exists for seven years but not against innocent bona fide purchasers for value while the execution is unrecorded; entry of the execution upon the general execution docket revives the lien for an additional seven-year period and is effective against all subsequent purchasers, dating from such entry or recording; a nulla bona entry made prior to the expiration of the seven-year period on such execution would revive the lien but only if such entry is also entered or reentered, as the case may be, upon the execution docket or other books upon which executions and entries are required to be entered or reentered. 1969 Op. Att'y Gen. No. 69-114.

RESEARCH REFERENCES

Am. Jur. 2d.

- 30 Am. Jur. 2d, Executions and Enforcement of Judgments, § 132.

- 33 C.J.S., Executions, §§ 79, 90.

- Validity, construction, and application of statute or ordinance requiring that judgments against municipality be paid in order of their entry or in other particular sequence, 138 A.L.R. 1303.

Mere rendition, or formal entry or docketing, of judgment as prerequisite to issuance of valid execution thereon, 65 A.L.R.2d 1162.