O.C.G.A. § 44-14-210

Bank v. Jones Motor Co., 168 Ga. 805, 149 S.E. 217, 1929 Ga. LEXIS 250 (1929); Ryals v. Lindsay, 176 Ga. 7, 167 S.E. 284, 1932 Ga. LEXIS 369 (1932). Trover. — Procuring a judgment under O.C.G.A. § 44-14-210 does not impair the plaintiff’s right to trover provided there has been no execution of the judgment. 44-14-210 Mitchell v. Castlen, 5 Ga. App. 134, 62 S.E. 731, 1908 Ga. App. LEXIS 35 (1908). Election of remedies not required. — A creditor, who holds a promissory note secured by a deed, is not put to an election of remedies as to whether the creditor shall sue upon the note or exercise a power of sale contained in the deed, but the creditor may do either, or pursue both remedies concurrently until the debt is satisﬁed. Pico, Inc. v. Mickel, 138 Ga. App. 856, 230 S.E.2d 488, 1976 Ga. App. LEXIS 2346 (1976), aff’d, 238 Ga. 218, 232 S.E.2d 841, 1977 Ga. LEXIS 966 (1977); Trust Inv. & Dev. Co. v. First Ga. Bank, 238 Ga. 309, 232 S.E.2d 828, 1977 Ga. LEXIS 1010 (1977); Brown v. Georgia State Bank, 141 Ga. App. 570, 234 S.E.2d 151, 1977 Ga. App. LEXIS 1997 (1977); Brown v. Rooks, 240 Ga. 674, 242 S.E.2d 128, 1978 Ga. LEXIS 800 (1978). Sufficiency of security deed. — Where debtor gave a security deed to creditor which did not contain formal language but did convey property described in the deed, such deed was sufficient to invest creditor with such title that the creditor could execute a valid reconveyance to the debtor for the purpose of levy and sale. Woodward v. La Porte, 181 Ga. 731, 184 S.E. 280, 1936 Ga. LEXIS 417 (1936). Proof that the defendant had title when defendant made the security deed to the plaintiff is sufficient to make out a prima facie case against a third party claimant in favor of the plaintiff in ﬁ. fa., notwithstanding the entry of levy stated the claimant was in possession at the time of the levy. Heaton v. Hayes, 188 Ga. 632, 4 S.E.2d 570, 1939 Ga. LEXIS 592 (1939). Quitclaim Deed Delivery of deed to debtor is not required under O.C.G.A. § 44-14-210. Denton Bros. v. Hannah, 12 Ga. App. 494, 77 S.E. 672, 1913 Ga. App. LEXIS 608 (1913); Terrell v. Gould, 168 Ga. 607, 148 S.E. 515, 1929 Ga. LEXIS 196 (1929); Alsabrook v. Prudential Ins. Co. of Am., 46 Ga. App. 400, 167 S.E. 735, 1933 Ga. App. LEXIS 74 (1933). Fact that the quitclaim deed was never delivered to the defendant did not render it void. Alsabrook v. Pruden- 615 Quitclaim Deed (Cont’d) tial Ins. Co. of Am., 46 Ga. App. 400, 167 S.E. 735, 1933 Ga. App. LEXIS 74 (1933). It is the duty of the vendor to convey the land by quitclaim deed to the purchaser for the purpose of levy and sale under O.C.G.A. § 44-14-210; when the vendor holds title as security for payment of purchase money; and upon a refusal by the vendor to make such a conveyance, a court of equity will compel the vendor to make such conveyance. Campbell v. Gormley, 184 Ga. 647, 192 S.E. 430, 1937 Ga. LEXIS 605 (1937). Proper person to execute deed. — Under O.C.G.A. § 44-14-210, the “holder of the legal title,” and not the original vendor, is the proper person to execute the quitclaim deed under the ﬁ. fa. If a note only is transferred and no deed is made conveying the legal title to the land as security, then it is necessary, after the transferee has obtained judgment, that the vendor execute a quitclaim deed to the purchaser before the ﬁ. fa. could have been levied, because in that event the vendor would have continued to be the holder of the legal title. Swinson v. Shurling, 162 Ga. 604, 134 S.E. 613, 1926 Ga. LEXIS 249 (1926). Where the holder of the legal title under a deed to secure debt, executed a power of attorney empowering the holder’s named attorney in fact to bring suit on papers comprising the deed and evidence of debt, to cause the property to be sold under levy after judgment, and to bid in the property in the name of such holder of the legal title, this authority included, as a “necessary and usual means” of selling the property, the right to execute the quitclaim reconveyance to the debtor, record of which in the clerk’s office is made by O.C.G.A. § 44-14-210, a prerequisite to a valid levy and sale of the property. Johnson v. Johnson, 184 Ga. 783, 193 S.E. 345, 1937 Ga. LEXIS 636 (1937). When reconveyance not required. — Where a warranty deed to secure a debt contains no defeasance clause, and no bond to reconvey is executed contemporaneously therewith — the grantee being given the power to sell the land at public outcry upon default in the payment of the 44-14-210 debt — it is not necessary that title be again placed in the grantor in order to bring the property to sale. Penn Mut. Life Ins. Co. v. Donalson, 177 Ga. 84, 169 S.E. 337, 1933 Ga. LEXIS 122 (1933). Reconveyance is not necessary before the issuance of attachment and seizure of the property thereunder. Bradley v. GMAC, 51 Ga. App. 609, 181 S.E. 188, 1935 Ga. App. LEXIS 418 (1935). Effect on sale. — Where land is conveyed by a deed to secure a debt, and the grantee or the grantee’s assignee obtains a judgment against the debtor and has the land levied on and sold under execution, without ﬁling and having recorded a deed reconveying the land to the debtor, the levy and sale are void, but where a sale is made solely by virtue of a power of sale in the security deed, no reconveyance to the grantor is necessary. Williams Realty & Loan Co. v. Simmons, 188 Ga. 184, 3 S.E.2d 580, 1939 Ga. LEXIS 492 (1939). Nature of title passed. — Regardless of the time intervening between the date of the execution of a quitclaim deed and a levy and sale of the property therein conveyed, the grantee would never by virtue of such a deed acquire title to the land for any purpose other than to authorize its sale under the levy, nor would the grantee in the security deed thereby forfeit rights and title under the security deed for any purpose other than to enable the grantee to have a legal levy and sale of the premises involved. Minchew v. Juniata College, 188 Ga. 517, 4 S.E.2d 212, 1939 Ga. LEXIS 572 (1939). Where a grantee in a security deed reduces claim to judgment and executes to the defendant in ﬁ. fa. a quitclaim deed for the purpose of levy and sale, which deed is duly recorded, and the property is sold by the sheriff, and the holder of the security deed becomes the purchaser at such sale, such reconveyance is in effect “in escrow” only for the purpose speciﬁed, and does not divest the grantee in the security deed of rights thereunder. Gooch v. Citizens & S. Nat’l Bank, 196 Ga. 322, 26 S.E.2d 727, 1943 Ga. LEXIS 357 (1943). Time of execution. — Where the quitclaim deed to the debtor was executed before the issuance of the execution, this did not render the quitclaim deed inopera- 616 44-14-210 MORTGAGES, SECURITY, LIENS tive. Alsabrook v. Prudential Ins. Co. of Am., 46 Ga. App. 400, 167 S.E. 735, 1933 Ga. App. LEXIS 74 (1933). The fact that the vendor had previously conveyed the land by warranty deed to one of the purchasers is not in compliance with the requirements of O.C.G.A. § 44-14-210. Holbrook v. Adams, 166 Ga. 871, 144 S.E. 657, 1928 Ga. LEXIS 423 (1928). Where there was no evidence to show that the plaintiff, the grantee in a security deed, had executed a quitclaim deed to the grantor in the security deed for the purpose of levy and sale, the trial court erred in directing a verdict ﬁnding the property subject to the plaintiff’s execution. Sparks v. Sparks, 193 Ga. 368, 18 S.E.2d 556, 1942 Ga. LEXIS 392 (1942). Accounting to other creditors. — Where a creditor grantee in a security deed obtains judgment, and sells the land without a deed of reconveyance as required by O.C.G.A. § 44-14-210, but goes into possession of the land and receives the rents, or has the use of the land personally, the creditor becomes chargeable with its proper rental, and must, in a proceeding with other judgment creditors, involving the distribution of the proceeds of other land covered by their liens, make an accounting for such rents by reducing the amount of the creditor’s claim accordingly. Williams Realty & Loan Co. v. Simmons, 188 Ga. 184, 3 S.E.2d 580, 1939 Ga. LEXIS 492 (1939). Filing and Recording Necessity for ﬁling and recording deed. — Though a claim may be reduced to judgment and a quitclaim deed to the defendant in ﬁ. fa. duly executed and signed, as required by O.C.G.A. § 44-14210, yet there can be no valid levy based upon such judgment unless such deed be duly ﬁled and recorded. National Bank v. Danforth, 80 Ga. 55, 7 S.E. 546, 1887 Ga. LEXIS 322 (1887); Dedge v. Bennett, 138 Ga. 787, 76 S.E. 52, 1912 Ga. LEXIS 712 (1912); Coates v. Jones, 142 Ga. 237, 82 S.E. 649, 1914 Ga. LEXIS 660 (1914). See also Brunson v. Grant, 48 Ga. 394, 1873 Ga. LEXIS 70 (1873). The property is not subject to levy and sale on a judgment for the secured debt 44-14-210 until it has been reconveyed to the debtor, and until such reconveyance has been ﬁled and recorded in the office of the clerk of the superior court. Callaway v. Life Ins. Co., 166 Ga. 818, 144 S.E. 381, 1928 Ga. LEXIS 413 (1928). When ﬁling not required. — A vendor abandoning this remedy in favor of ejectment need not ﬁle the deed. Hines v. Rutherford, 67 Ga. 606, 1881 Ga. LEXIS 239 (1881). Place of recording. — When the defendant’s land lies partly in each of two counties and a levy is sought upon the entire tract, the deed must be recorded in each county. Cade v. Larned, 99 Ga. 588, 27 S.E. 166, 1896 Ga. LEXIS 452 (1896). Time of recording. — Where the vendor of land executed a quitclaim deed thereto for the purpose of levying the execution which issued upon the judgment against the vendee for the unpaid purchase-money, such deed, ﬁled and recorded before the levy, is not invalid for such purpose, although not recorded until after the death of the vendor. Terrell v. Gould, 168 Ga. 607, 148 S.E. 515, 1929 Ga. LEXIS 196 (1929). When the ﬁrst deed ﬁled is defective another may be ﬁled. Moss v. Lovett, 99 Ga. 321, 25 S.E. 649, 1896 Ga. LEXIS 394 (1896). Levy and Sale The words “may be levied” as used in O.C.G.A. § 44-14-210 are permissive, not mandatory. Hines v. Rutherford, 67 Ga. 606, 1881 Ga. LEXIS 239 (1881). Prerequisites to levy. — Before a sheriff can levy upon the land as the land of the defendant in ﬁ. fa., the legal title thereto had to be put in the defendant in ﬁ. fa. by executing a quitclaim deed in favor of the defendant and ﬁling and having the same recorded in the clerk’s office of the county where the land is. Alsabrook v. Prudential Ins. Co. of Am., 46 Ga. App. 400, 167 S.E. 735, 1933 Ga. App. LEXIS 74 (1933). Rights of junior lienholders. — Creditors of a vendee, before a deed from vendor to vendee has been ﬁled and recorded under the provisions of O.C.G.A. § 44-14-210, cannot themselves subject the land to levy and sale, their liens being 617 44-14-210 Notice Levy and Sale (Cont’d) inferior to those of the vendor. Harvill v. Lowe, 47 Ga. 214, 1872 Ga. LEXIS 315 (1872). If there be a failure to enter on an execution made under O.C.G.A. § 44-14210 a credit which should be so entered, this will not of itself be sufficient grounds to warrant the grant of an injunction to arrest a levy and sale thereunder. Brown v. Wilson, 56 Ga. 534, 1876 Ga. LEXIS 355 (1876). Discretion of levying officer. — In the case of a levy upon land, made in pursuance of the mandate of the court directing the sale of speciﬁc property under a ﬁnal judgment of foreclosure against the defendant, the levying officer has no discretion, but the officer’s duty is to levy on the speciﬁc property to pay the judgment; nor would the officer be authorized in the seizure of any person’s interest in the property except that of the defendant. Heaton v. Hayes, 188 Ga. 632, 4 S.E.2d 570, 1939 Ga. LEXIS 592 (1939). Effect of sheriff’s deed. — The title, legal and equitable, of the creditor becomes complete and indefeasible when the creditor obtains the sheriff’s deed conveying to the creditor as a purchaser at the official sale the property in dispute. Crawford v. Pritchard, 81 Ga. 14, 6 S.E. 689, 1888 Ga. LEXIS 52 (1888); Hirsch v. Northwestern Mut. Life Ins. Co., 191 Ga. 524, 13 S.E.2d 165, 1941 Ga. LEXIS 321 (1941). If the possession acquired be by virtue of a void sale by the sheriff, the creditor acquires no more right to the property than if the creditor had taken possession under the security deed on account of default in the payment of the debt. Hirsch v. Northwestern Mut. Life Ins. Co., 191 Ga. 524, 13 S.E.2d 165, 1941 Ga. LEXIS 321 (1941). No notice required when parties all informed. Palmer v. Simpson, 69 Ga. 792, 1883 Ga. LEXIS 120 (1883). Persons not entitled to notice. — There is no principle entitling purchasers who purchased land which was subject to the security deed to notice of the exercise of this statutory power by the creditor, and that in failing to provide such notice O.C.G.A. § 44-14-210 does not deprive them of property without due process of law or deny them the equal protection of the laws. Scott v. Paisley, 271 U.S. 632, 46 S. Ct. 591, 70 L. Ed. 1123, 1926 U.S. LEXIS 646 (1926). Where the holder of a security deed assigns such deed and conveys the property therein described, the assignee takes all rights, title, and powers of the assignor in the security deed, and such assignor is precluded by a judgment of foreclosure of such deed from thereafter claiming a reversionary interest in the land embraced in the deed, although the assignor had no notice of the foreclosure proceedings. Owens v. Conyers, 189 Ga. 793, 7 S.E.2d 675, 1940 Ga. LEXIS 379 (1940). Failure to give notice. — When a defendant in execution is the vendee of land, and has only a bond for titles, and a portion of the purchase money has been paid, and the land is levied on and sold by judgments against the vendee, and no notice is given as required by O.C.G.A. § 44-14-210, nothing is sold but the interest of the defendant, and the vendor cannot claim any of the proceeds on the ground that the vendor’s purchase money is not all paid. The vendor’s remedy is by ﬁling a deed and selling the land, or by action of ejectment on legal title. Estes v. Ivey, 53 Ga. 52, 1874 Ga. LEXIS 394 (1874).