Turner v

Woodward, 133 Ga. 467, 66 S.E. 160, 1909 Ga. LEXIS 245 (1909). Effect on insurance coverage. — A stipulation in an insurance policy that change of title or possession will render the policy void, does not cover a change 480 44-14-60 MORTGAGES, SECURITY, LIENS effected by taking a security deed under O.C.G.A. § 44-14-60. Nussbaum v. Northern Ins. Co., 37 F. 524, 1889 U.S. App. LEXIS 2721 (C.C.D. Ga. 1889). Where a policy of insurance covering a building on the premises is issued, containing a condition that the policy shall be void if the property should be sold, or the title or possession of the property, or any part thereof, transferred or changed, the holder of the policy conveys under O.C.G.A. § 44-14-60 the property insured, the policy is thereby rendered void. Phoenix Ins. Co. v. Asberry, 95 Ga. 792, 22 S.E. 717, 1895 Ga. LEXIS 282 (1895). Effect of execution of deed to nominee of lender. — After Chapter 7 debtor executed a note to a lender and also executed a security deed to a grantee, as the lender’s nominee, to secure the debt, the Chapter 7 trustee could not avoid the deed because the note and deed were executed together and remained linked via language in the documents that contemplated the agency relationship formed by the designation of the grantee as nominee. Drake v. Citizens Bank (In re Corley), 447 B.R. 375, 2011 Bankr. LEXIS 807 (Bankr. S.D. Ga. 2011). Taxation based on beneficial ownership. — In this state, in matters of taxation, the law looks to the substantial, beneficial ownership of property conveyed under O.C.G.A. § 44-14-60, rather than to the shadowy, technical ownership of the legal title. Central of Ga. Ry. v. Wright, 124 Ga. 630, 53 S.E. 207, 1906 Ga. LEXIS 566 (1906), rev’d, 207 U.S. 127, 28 S. Ct. 47, 52 L. Ed. 134, 1907 U.S. LEXIS 1209 (1907). Merger of tax executions. — Where a grantee who had previously paid tax executions on property purchases the property after exercising the power of sale in a security deed, any claim for money for the tax executions is merged into the grantee’s legal title. Branch v. Grubb, 177 Ga. 663, 170 S.E. 799, 1933 Ga. LEXIS 384 (1933). Evidence. — In the absence of an attack on a properly witnessed and recorded bill of sale placing upon a party the burden of proving its execution, it was not error to admit the bill of sale without proof of its execution. Watkins v. Muse, 78 Ga. 44-14-60 App. 17, 50 S.E.2d 90, 1948 Ga. App. LEXIS 669 (1948). Summary judgment proper once security deed paid in full. — In an action to remove a cloud from title, the trial court properly granted summary judgment to a bank and cancelled a recorded deed in favor of a holder, as: (1) the holder could no longer claim any legal title to the subject property once the underlying debt thereto was paid; (2) no evidence of valid renewal or extension of the note existed; and (3) the holder lacked standing to challenge any foreclosure on the debt. Northwest Carpets, Inc. v. First Nat’l Bank, 280 Ga. 535, 630 S.E.2d 407, 2006 Ga. LEXIS 341 (2006). Measure of damages under title insurance policy. — In a breach of contract and bad faith refusal to pay claim under a policy of lender’s title insurance, the court reversed the judgment in favor of the insured and held that the issued date for the purpose of measuring any loss by the insured was the date the insured foreclosed on the subject property, not the date the bank closed on the subject loan. Old Republic Nat’l Title Ins. Co. v. RM Kids, LLC, 337 Ga. App. 638, 788 S.E.2d 542, 2016 Ga. App. LEXIS 385 (2016), cert. denied, No. S16C1843, 2017 Ga. LEXIS 117 (Ga. Feb. 27, 2017). Form and Requisites Instrument cannot be of two natures. — The parties cannot by an agreement make an instrument both retaining title and not retaining title; nor can they by such agreement make a summary statutory proceeding applicable by law to one character of instruments applicable by agreement to another. Wynn & Robinson v. Tyner, 139 Ga. 765, 78 S.E. 185, 1913 Ga. LEXIS 596 (1913). Sufficiency of description. — Where a security deed conveys a certain lease from the lessor to the grantor in such deed, which deed fully describes the lease and the leased premises and contains this provision: “including also all the machinery, equipment, stock in trade and all other assets” of the grantor, the description of such personal property is sufficient. Bennett v. Green, 156 Ga. 572, 156 Ga. 573, 119 S.E. 620, 1923 Ga. LEXIS 275 (1923). 481 Form and Requisites (Cont’d) Specifying amount of debt. — It is not necessary that a deed to secure debt shall specify the amount of the indebtedness that it is given to secure. Troup Co. v. Speer, 23 Ga. App. 750, 99 S.E. 541, 1919 Ga. App. LEXIS 333 (1919). Statutory obligation to cancel satisfied notes. — The trial court, having found a debt to have been forgiven upon a decedent’s death, did not err in ordering the decedent’s administrator to cancel a deed to secure debt. The litigation did not give notice to the public that the deed had been cancelled; under O.C.G.A. §§ 44-143(b) and 44-14-60, a grantee of a security deed had the duty to cancel the deed of record when the obligation was satisfied. Mize v. Woodall, 291 Ga. App. 349, 662 S.E.2d 178, 2008 Ga. App. LEXIS 496 (2008). Debt infected with usury. — A deed executed by a borrower under O.C.G.A. § 44-14-60 to secure a debt infected with usury, and purporting not only to convey title to the lender, but also to confer upon the latter a power of sale, is void. Pottle v. Lowe, 99 Ga. 576, 27 S.E. 145, 1896 Ga. LEXIS 449 (1896). See also McLaren v. Clark, 80 Ga. 423, 7 S.E. 230, 1888 Ga. LEXIS 153 (1888); Liles v. Bank of Camden County, 151 Ga. 483, 107 S.E. 490, 1921 Ga. LEXIS 304 (1921). Under the Federal Farm Loan Act of 1916, as amended (former 12 U.S.C. §§ 771, 781, now repealed), a Federal Land Bank has authority and “jurisdiction” to lend money to members of national farm loan associations on security of mortgages on farm lands within its district, and it may in the State of Georgia take as security a deed to secure debt instead of a mortgage, and one who has obtained a loan from such a bank, and others holding under that person, will be estopped to deny the bank’s authority. Smith v. Federal Land Bank, 56 Ga. App. 526, 193 S.E. 257, 1937 Ga. App. LEXIS 157 (1937). Determining Nature of Instrument Mortgage and deed to secure debt distinguished. — A deed to secure a debt is not the same as a mortgage. Such a 44-14-60 deed conveys title; a mortgage is only a lien. Cole v. Cates, 110 Ga. App. 820, 140 S.E.2d 36, 1964 Ga. App. LEXIS 768 (1964). Mortgage and bill of sale distinguished. — If the title becomes divested from the vendee upon the mere payment of the debt, the instrument created is only a mortgage, and is not a bill of sale to secure a debt and an instrument passing title as provided under O.C.G.A. § 44-1460. Grady v. T.I. Harris, Inc., 41 Ga. App. 111, 151 S.E. 829, 1930 Ga. App. LEXIS 474 (1930). A bill of sale to secure debt conveys an outright legal title, as distinguished from a mortgage lien, so as to place such legal title beyond the reach of any lien, statutory or otherwise, in the absence of a recording act treating such as an equitable mortgage. Manchester Motors, Inc. v. F & M Bank, 91 Ga. App. 811, 87 S.E.2d 342, 1955 Ga. App. LEXIS 870 (1955). Security deeds and trust deeds distinguished. See In re Lookout Mt. Hotel Co., 50 F.2d 421, 1931 U.S. Dist. LEXIS 1402 (D. Ga.), rev’d, 53 F.2d 463, 1931 U.S. App. LEXIS 2691 (5th Cir. 1931). Bill of sale not pledge. — A bill of sale transferring title to a discount company of certain household furniture of the plaintiff as collateral security for a loan is not a mere pledge, but legal title is in the creditor subject to the right of the debtor to a reconveyance upon the debtor’s payment of the debt in compliance with the terms of the contract. Jones v. Brown, 108 Ga. App. 776, 134 S.E.2d 440, 1963 Ga. App. LEXIS 770 (1963). Absolute deed cannot be shown to be mortgage. — A deed absolute on its face and accompanied with possession of property by defendant, could not, under the state of the pleadings, be proved by parol to be only a mortgage given for the purpose of securing a debt. Mitchell v. Fullington, 83 Ga. 301, 9 S.E. 1083, 1889 Ga. LEXIS 52 (1889). Creation of trust to pay note. — The creation of a trust for the purpose of paying a note is the same in effect as the insertion of a defeasance clause in the instrument; and this being true, such instrument is a mortgage, and not a bill of 482 44-14-60 MORTGAGES, SECURITY, LIENS sale. Ward v. Lord, 100 Ga. 407, 28 S.E. 446, 1897 Ga. LEXIS 74 (1897). Mortgage in form of security deed. — An instrument in the usual form of a security deed under O.C.G.A. § 44-14-60, but containing a clause providing that should the grantor “faithfully perform and keep all the covenants and agreements herein set out, this conveyance shall cease, determine, and be void,” is a mortgage, and not a deed. Massillon Engine & Thresher Co. v. Burnett, 19 Ga. App. 487, 91 S.E. 786, 1917 Ga. App. LEXIS 183 (1917). O.C.G.A. § 44-14-60 not exclusive for conveyance of absolute title to a creditor to secure a debt. Roland v. Coleman & Co., 76 Ga. 652, 1886 Ga. LEXIS 79 (1886); Ward v. Lord, 100 Ga. 407, 28 S.E. 446, 1897 Ga. LEXIS 74 (1897). Compliance with section. — A failure to comply strictly with the provisions of O.C.G.A. § 44-14-60 does not necessarily make a conveyance given to secure a debt a mortgage. Williamson v. Orient Ins. Co., 100 Ga. 791, 28 S.E. 914, 1897 Ga. LEXIS 144 (1897). Equitable mortgages. — If a deed is not made under O.C.G.A. § 44-14-60, but is made for the purpose of securing a debt, it would be what was known before the passage of the Act embodied in O.C.G.A. § 44-14-60, as an equitable mortgage, conveying the title of the land with the equitable right of redemption. Mitchell v. Fullington, 83 Ga. 301, 9 S.E. 1083, 1889 Ga. LEXIS 52 (1889). Effect of defeasance clause. — Where a written instrument which purports to be a bill of sale passing the title as security for a debt contains a defeasance clause, the instrument is a mortgage, and the title, which under the language of the instrument purports to pass, does not pass to the vendee. Grady v. T.I. Harris, Inc., 41 Ga. App. 111, 151 S.E. 829, 1930 Ga. App. LEXIS 474 (1930); Personal Fin. Co. v. Bailie, 43 Ga. App. 245, 158 S.E. 436, 1931 Ga. App. LEXIS 283 (1931). Effect of referring to “this mortgage.” — Where an instrument was described as “this mortgage,” it was the intention of the parties that the instrument be construed to be a mortgage. Massillon Engine & Thresher Co. v. Bur- 44-14-60 nett, 19 Ga. App. 487, 91 S.E. 786, 1917 Ga. App. LEXIS 183 (1917). Effect of reciting that “this is a deed.” — A bill of sale of personalty to secure the payment of a debt, which recites that “this is a deed conveying title, and a bond to reconvey is this day given,” is not a mortgage, but a conveyance under O.C.G.A. § 44-14-60. Watts v. Wight Inv. Co., 25 Ga. App. 291, 103 S.E. 184, 1920 Ga. App. LEXIS 747 (1920). Instrument securing endorser. — An instrument otherwise in the form of a security deed is not a mortgage merely because it recites that it was given to secure an endorser upon a described note. The relationship of the parties does not make it a mortgage, nor is such recital a defeasance clause whereby the instrument should be treated as a mortgage and not as a security deed. Richey v. First Nat’l Bank, 180 Ga. 751, 180 S.E. 740, 1935 Ga. LEXIS 550 (1935). Title not placed in grantor. — 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 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). Conveyance for indemnification. — A conveyance of real property, which recites that it is given for the purpose of indemnifying the grantee against loss resulting from an outstanding “mortgage” upon other property which the same grantor had conveyed to the same grantee, which contains no habendum clause and which provides that when the mortgage referred to is paid, “then this deed shall be null and void,” and which further provides that when this mortgage is paid “this deed shall become null and void and cancelled on the record and surrendered to” the grantor, is not a security deed passing title to the grantee, but is a mortgage only. Camp v. Teal, 44 Ga. App. 829, 163 S.E. 233, 1932 Ga. App. LEXIS 543 (1932). Reversion of title. — Where an instrument was denominated a bill of sale 483 44-14-60 Determining Nature of Instrument (Cont’d) for personalty and was given to secure a debt, as provided in O.C.G.A. § 44-14-60, yet where it contained a stipulation that the title to the personalty was put into the vendee until the debt was paid in full, this stipulation, by its terms, terminated the title to the vendee on the payment of the debt, and, when the debt was paid, the title reverted to the vendor; the instrument, therefore, was a mortgage only, and created only a lien upon the personalty, and passed no title thereto. Hix v. Williams, 42 Ga. App. 143, 155 S.E. 355, 1930 Ga. App. LEXIS 264 (1930). Because a security deed did not specify a fixed period for repayment or state that the security interest was perpetual under O.C.G.A. § 44-14-80(a), title to the property reverted to the grantor after seven years and the grantee’s security interest in the property was lost. Vineville Capital Group, LLC v. McCook, 329 Ga. App. 790, 766 S.E.2d 156, 2014 Ga. App. LEXIS 781 (2014). Estoppel after allegation that instrument is deed. — Where the holder of a promissory note, secured by an instrument purporting to be a deed, obtains a judgment thereon, stating in the holder’s declaration that the instrument is a deed, the holder will not afterwards be heard to allege that the instrument is a mortgage and not a deed passing title. McCandless v. Yorkshire Guarantee & Sec. Corp., 101 Ga. 180, 28 S.E. 663, 1897 Ga. LEXIS 189 (1897). Illustrations. — Under O.C.G.A. § 4414-60 a bill of sale of personalty to secure a debt, although it contains a clause to reconvey the property upon the payment of the debt, is not a mortgage, but is an absolute conveyance of the property, and passes title to the same until the debt is fully paid. Hill v. Marshall, 18 Ga. App. 652, 90 S.E. 175, 1916 Ga. App. LEXIS 1169 (1916). Where an instrument recited that, whereas, the subscriber bargained, sold, transferred, and conveyed to C. all the stock of goods in a certain store, etc., that delivery was dispensed with, and that the goods were to remain in the subscriber’s possession until default in the payment of the note and interest, during which time the subscriber was to be a bailee for hire, and on default was to deliver the property to C., it was a deed to secure a debt under O.C.G.A. § 44-14-60, and not a chattel mortgage. In re Caldwell, 178 F. 377, 1910 U.S. Dist. LEXIS 337 (D. Ga. 1910). Rights of Grantor In general. — While deeds to secure debt do pass title to the property by which the debt is secured, such a deed does not divest the grantor in such deed of all the grantor’s rights and interest in the property. Barnard v. Barnard, 91 Ga. App. 502, 86 S.E.2d 533, 1955 Ga. App. LEXIS 787 (1955). Right of possession and redemption. — The grantor in a deed under O.C.G.A. § 44-14-60 retains the right of possession and the right of redemption by payment of the debt, and consequently an equitable estate in the land which may be assigned or subjected to payment of grantor’s debts. Citizens’ Bank v. Taylor, 155 Ga. 416, 117 S.E. 247, 1923 Ga. LEXIS 85 (1923); Uvalda Naval Stores Co. v. Cullen, 165 Ga. 115, 139 S.E. 810, 1927 Ga. LEXIS 316 (1927); Citizens & S. Bank v. Realty Sav. & Trust Co., 167 Ga. 170, 144 S.E. 893, 1928 Ga. LEXIS 120 (1928); Federal Land Bank v. St. Clair Lumber Co., 58 Ga. App. 532, 199 S.E. 337, 1938 Ga. App. LEXIS 42 (1938); Bell v. Allied Fin. Co., 215 Ga. 631, 112 S.E.2d 609, 1960 Ga. LEXIS 284 (1960). Possession. — O.C.G.A. § 44-14-60 contemplates that the grantor might remain in possession of the property. Tift & Co. v. Dunn, 80 Ga. 14, 5 S.E. 256, 1887 Ga. LEXIS 311 (1887). Grantor remaining in possession. — Where one executes a security deed and remains in possession of the land described in the deed, that person’s possession is under the grantee in the security deed and is not adverse to the title, and neither prescription nor the statute of limitations is available as a defense to an action in ejectment founded on the security deed. Thomas v. Stedham, 208 Ga. 603, 68 S.E.2d 560, 1952 Ga. LEXIS 273 (1952). Right of redemption. — When one has borrowed a sum of money and con- 484 44-14-60 MORTGAGES, SECURITY, LIENS veyed land to the lender as security for the payment of the debt, and received from the grantee a bond conditioned to reconvey on the payment of the debt, the interest pertaining to such land which the grantor thereafter possesses, until the debt is paid, is the right to redeem. Williams & Bessinger v. Foy Mfg. Co., 111 Ga. 856, 36 S.E. 927, 1900 Ga. LEXIS 835 (1900). Nature of right to redeem. — The right to redeem is an equitable estate in the land, and may be sold and conveyed, subject to the paramount right of the original grantee to have all of the land appropriated to the payment of grantee’s debt. Williams & Bessinger v. Foy Mfg. Co., 111 Ga. 856, 36 S.E. 927, 1900 Ga. LEXIS 835 (1900). How land redeemed. — To redeem land, held by absolute legal title as security for a debt under O.C.G.A. § 44-14-60, the debt must be paid or tendered; and, generally, a tender will be effective, though delayed till after the creditor has recovered possession of the premises by action. Broach v. Barfield, 57 Ga. 601, 1876 Ga. LEXIS 177 (1876). No leviable interest. — A security deed leaves the grantor no interest in land which can be subjected to levy and sale by a creditor whose judgment was obtained after the deed was executed. Shumate v. McLendon, 120 Ga. 396, 48 S.E. 10, 1904 Ga. LEXIS 565 (1904); Bennett Lumber Co. v. Martin, 132 Ga. 491, 64 S.E. 484, 1909 Ga. LEXIS 340 (1909); Penn Mut. Life Ins. Co. v. Donalson, 177 Ga. 84, 169 S.E. 337, 1933 Ga. LEXIS 122 (1933); Dean v. Andrews, 236 Ga. 643, 225 S.E.2d 38, 1976 Ga. LEXIS 972 (1976). Equitable interest. — A security deed to land conveys the legal title to the vendee, and the rights of the vendee cannot be affected by subsequent acts of conveyance by the vendor to third parties. But the vendor has such an equitable interest in the premises conveyed as that the vendor may create a valid second security deed, or lien, subject to the paramount right of the original grantee to have all the land appropriated to the payment of grantee’s debt. Cook v. Georgia Fertilizer & Oil Co., 154 Ga. 41, 113 S.E. 145, 1922 Ga. LEXIS 302 (1922). Condition precedent to equitable relief by grantor. — Before a borrower 44-14-60 who has executed a deed under O.C.G.A. § 44-14-60 can have affirmative equitable relief, such as injunction to prevent exercise of the power of sale by the grantee in such security deed, the borrower must pay or tender to such grantee the principal and lawful interest due. Liles v. Bank of Camden County, 151 Ga. 483, 107 S.E. 490, 1921 Ga. LEXIS 304 (1921). Judgment against grantor. — An absolute deed, though made as a security for a debt, passes title under O.C.G.A. § 4414-60, and a judgment subsequently rendered against the grantor, has no lien on the land which can be enforced by levy and sale until the title can become reinvested by redemption. Groves v. Williams, 69 Ga. 614, 1882 Ga. LEXIS 276 (1882). Effect of sale. — A sale under the powers contained in a deed to secure debt divests the grantor of all title, and right of equity of redemption, to the lands described in the deed. Cummings v. Johnson, 218 Ga. 559, 129 S.E.2d 762, 1963 Ga. LEXIS 261 (1963). Effect of bankruptcy. — Title by virtue of a deed under O.C.G.A. § 44-14-60 was not divested by the subsequent voluntary bankruptcy of the grantor, and grantor’s consequent discharge from all debts. Broach v. Barfield, 57 Ga. 601, 1876 Ga. LEXIS 177 (1876); Thomas v. Stedham, 208 Ga. 603, 68 S.E.2d 560, 1952 Ga. LEXIS 273 (1952). Effect of homestead on title. — Title under O.C.G.A. § 44-14-60 was not divested by the bankrupt causing the land to be set apart in bankruptcy as the bankrupt’s homestead exemption. Broach v. Barfield, 57 Ga. 601, 1876 Ga. LEXIS 177 (1876). Right to homestead. — A conveyance to secure a debt, made under O.C.G.A. § 44-14-60, passes title, and defeats all right to homestead in the land covered by such a deed. Isaacs v. Tinley, 58 Ga. 457, 1877 Ga. LEXIS 142 (1877). See also, Johnson v. Griffin Banking & Trust Co., 55 Ga. 691, 1876 Ga. LEXIS 459 (1876); Christopher v. Williams, 59 Ga. 779, 1877 Ga. LEXIS 393 (1877); Kirby v. Reese, 69 Ga. 452, 1882 Ga. LEXIS 243 (1882); Morgan v. Community Loan & Inv. Co., 195 Ga. 675, 25 S.E.2d 413, 1943 Ga. LEXIS 550 (1943). 485 Rights of Grantor (Cont’d) Right to contest deed. — The right to contest the validity of a security deed on the ground that the notes secured by the deed contain usury is personal to the maker of the security deed, the maker’s representatives and privies. A stranger in interest will not be heard in an attack on a title claimed to be void for usury. Dickenson v. Williams, 151 Ga. 71, 105 S.E. 841, 1921 Ga. LEXIS 153 (1921). Rights of grantor’s lessee. — Where the leasehold of the plaintiff is under one who, by making a security deed to a creditor under O.C.G.A. § 44-14-60, has divested himself of the legal title, and the plaintiff has no more than a mere possession of the land upon which the trespass is alleged to have been committed, plaintiff cannot maintain an action for damages to the realty. Flowers Lumber Co. v. Bush, 18 Ga. App. 269, 89 S.E. 344, 1916 Ga. App. LEXIS 278 (1916). Rights of Grantee In general. — The interest which a grantee takes under a deed executed under this law is not absolute in its broadest sense, but is restricted to holding title as security for the debt. For that purpose it places legal title out of the grantor, but on payment of the debt the right of the grantee to hold it ceases. It is a species of security effective from the date of the instrument when duly recorded, and is enforceable against the property by levy and sale under proceedings elsewhere provided for in the Code. Harvard v. Davis, 145 Ga. 580, 89 S.E. 740, 1916 Ga. LEXIS 408 (1916); Trust Co. v. Mobley, 40 Ga. App. 468, 150 S.E. 169, 1929 Ga. App. LEXIS 589 (1929). Options of holder of deed. — One holding a deed to secure debt under O.C.G.A. § 44-14-60 has the option of pursuing the statutory method of suing on the indebtedness, obtaining a judgment, executing a quitclaim deed to the debtor and filing the same for record for purposes of levy, and having the land sold under the judgment or the security deed may be foreclosed as an equitable mortgage. Ryals v. Lindsay, 176 Ga. 7, 167 S.E. 284, 1932 Ga. LEXIS 369 (1932). 44-14-60 Grantee has leviable interest. — The holder of a subsisting security deed has the legal title to the property, and such title may be levied on as the holder’s property to satisfy an execution against the holder. Parrott v. Baker, 82 Ga. 364, 9 S.E. 1068, 1889 Ga. LEXIS 384 (1889); Richey v. First Nat’l Bank, 180 Ga. 751, 180 S.E. 740, 1935 Ga. LEXIS 550 (1935). A grantee has standing to enforce restrictive covenants against an outsider, and there is no need for the grantee to show actual benefit or injury to enforce this right. Turner Adv. Co. v. Garcia, 252 Ga. 101, 311 S.E.2d 466, 1984 Ga. LEXIS 598, cert. denied, 469 U.S. 824, 105 S. Ct. 101, 83 L. Ed. 2d 46, 1984 U.S. LEXIS 3146 (1984). Fee simple. — Unlike a mortgagee, who acquires only a lien, the grantee, or holder of a security deed in Georgia acquires the fee simple title to the property, subject to the right of the grantor, who is known as the equity owner, to reacquire the fee simple title upon satisfying the terms of the security deed. Sayers v. Forsyth Bldg. Corp., 417 F.2d 65, 1969 U.S. App. LEXIS 10696 (5th Cir. 1969). Right of trover action. — The grantee in a bill of sale, given for the purpose of securing a present, past or future indebtedness, has an interest in the pledged property which will support an action of trover against any one who wrongfully converts the same to the grantee’s use, and in a proceeding instituted for that purpose the grantee may elect to take a money verdict, and in such a case where an election to take a money verdict is made, the measure of damages is either the highest proved value of the pledged property between the date of conversion and the trial, or the value of the property at the time of conversion, with interest or hire thereon; but subject, however, to the condition that under neither choice can a recovery be had for more than the amount of the debt for which the property stands as security. Rose City Foods, Inc. v. Bank of Thomas County, 207 Ga. 477, 62 S.E.2d 145, 1950 Ga. LEXIS 618 (1950). Allegation of default. — While a bill of sale to secure debt will support an action in trover it is necessary to allege in the petition a default by the maker giving 486 44-14-60 MORTGAGES, SECURITY, LIENS the holder the right of possession, and in the absence of such an allegation, the petition is subject to general demurrer. American Nat’l Bank & Trust Co. v. Davis, 104 Ga. App. 586, 122 S.E.2d 477, 1961 Ga. App. LEXIS 742 (1961). Right to recovery in ejectment. — A deed to secure a debt passes the legal title under O.C.G.A. § 44-14-60 and will authorize a recovery in ejectment. Dykes v. McVay, 67 Ga. 502, 1881 Ga. LEXIS 212 (1881); Todd v. Morgan, 215 Ga. 220, 109 S.E.2d 803, 1959 Ga. LEXIS 550 (1959). Ejectment after debt matures. — The vendee in a security deed, after the debt matures, can bring ejectment against the vendor upon the title put in the vendee by such deed. Carswell v. Hartridge, 55 Ga. 412, 1875 Ga. LEXIS 441 (1875); Biggers v. Bird, 55 Ga. 650, 1876 Ga. LEXIS 447 (1876); Dykes v. McVay, 67 Ga. 502, 1881 Ga. LEXIS 212 (1881); Bennett v. Green, 156 Ga. 572, 156 Ga. 573, 119 S.E. 620, 1923 Ga. LEXIS 275 (1923). Title as defense to ejectment. — A deed under O.C.G.A. § 44-14-60 passing title to the grantee therein named, for the purpose of securing a debt, can, after the maturity of the debt, be set up as outstanding title to defeat an action of ejectment brought by one claiming under the grantor, if the possession of the defendant is connected with such title. Ashley v. Cook, 109 Ga. 653, 35 S.E. 89, 1900 Ga. LEXIS 279 (1900). Upon failure of debtor to pay debt at maturity. — The creditor may institute action thereon and may pray for and obtain a special judgment subjecting the property described in the deed to the payment of the debt. Jewell v. Walker, 109 Ga. 241, 34 S.E. 337, 1899 Ga. LEXIS 620 (1899). Failure to accept tender. — Where creditor has collateral, mortgage, or other form of security upon property of the debtor, failure to accept a lawful tender discharges the lien which was intended to secure payment. Thurman v. Lee, 181 Ga. 408, 182 S.E. 609, 1935 Ga. LEXIS 102 (1935). Condition precedent to levy. — In order for a creditor to levy an execution upon property covered by a valid bill of 44-14-60 sale made to secure a debt under O.C.G.A. § 44-14-60, the creditor must first redeem the property by paying off in full the security debt, and a levy made without a compliance with such condition precedent is void. Bank of La Grange v. Rutland, 27 Ga. App. 442, 108 S.E. 821, 1921 Ga. App. LEXIS 952 (1921). Chattel attached to realty. — Where furnace was a chattel attached to the realty of the grantee in the security deed as an “irremovable fixture,” and where, after the execution of the security deed, it is detached and carried away by the grantor in said deed, an action will lie for its recovery and the fact that it was subsequently attached to the realty of the grantor in another county and this realty was sold to an innocent purchaser does not deprive the innocent owner of the property merely because some other person may be innocent or ignorant of the plaintiff’s ownership. Burpee v. Athens Prod. Credit Ass’n, 65 Ga. App. 102, 15 S.E.2d 526, 1941 Ga. App. LEXIS 267 (1941). Timber rights. — A deed under O.C.G.A. § 44-14-60 passes the title to the land and the timber growing thereon to the vendee. G. H. Ponder & Co. v. Mutual Benefit Life Ins. Co., 165 Ga. 366, 140 S.E. 761, 1927 Ga. LEXIS 399 (1927); Federal Land Bank v. St. Clair Lumber Co., 58 Ga. App. 532, 199 S.E. 337, 1938 Ga. App. LEXIS 42 (1938). Effect of recording. — A duly filed and recorded deed to secure debt is notice of all the rights which the grantee has thereunder. Cummings v. Johnson, 218 Ga. 559, 129 S.E.2d 762, 1963 Ga. LEXIS 261 (1963). Land located in two counties. — Where a large body of land divided by a county line was conveyed as a whole to secure a debt, with bond for reconveyance, the creditor, after obtaining judgment, could have the entire tract levied on and sold in either county, neither being the county of the residence of the defendant in execution. Cade v. Larned, 99 Ga. 588, 27 S.E. 166, 1896 Ga. LEXIS 452 (1896). Priorities In general. — An unrecorded bill of sale to secure debt is uniformly superior to 487 Priorities (Cont’d) any lien arising by operation of law. Manchester Motors, Inc. v. F & M Bank, 91 Ga. App. 811, 87 S.E.2d 342, 1955 Ga. App. LEXIS 870 (1955). Contractor’s lien. — Where the owner of property incumbered it with a security deed and a contractor’s lien, and thereafter leased a portion of it to a third person for a term of years, the holders of the liens will be compelled to sell such property in such a manner as not capriciously, unnecessarily, and unjustly to interfere with such leasehold interest. Western Union Tel. Co. v. Brown & Randolph Co., 154 Ga. 229, 114 S.E. 36, 1922 Ga. LEXIS 339 (1922). Materialman’s lien. — Where title to real estate is conveyed by a duly recorded deed to secure a debt under O.C.G.A. § 44-14-60, and the grantee takes the deed and advances the money loaned, without notice and before the record of the materialman’s lien upon the property, the title thus acquired is superior to such lien. Bennett Lumber Co. v. Martin, 132 Ga. 491, 64 S.E. 484, 1909 Ga. LEXIS 340 (1909); Milner v. Wellhouse, 148 Ga. 275, 96 S.E. 566, 1918 Ga. LEXIS 295 (1918); Guaranty Inv. & Loan Co. v. Athens Eng’g Co., 152 Ga. 596, 110 S.E. 873, 1922 Ga. LEXIS 225 (1922); Rivers v. Williams Bros. Lumber Co., 174 Ga. 262, 162 S.E. 699, 1932 Ga. LEXIS 35 (1932). Laborers’ lien. — A security deed under O.C.G.A. § 44-14-60 is such a conveyance of title as will defeat laborers’ liens upon the property embraced therein, if their creation was junior to this instrument, or if such deed was taken bona fide by the grantee and without notice of such liens. Bennett v. Green, 156 Ga. 572, 156 Ga. 573, 119 S.E. 620, 1923 Ga. LEXIS 275 (1923). Lease. — When property has been conveyed by a grantor to secure a debt, and the grantee in the security deed reduces debt to judgment and files a quitclaim deed for the purpose of levy and sale, and the property is sold by the sheriff under the levy of the execution issued on such judgment, the lessee from the grantor under a lease junior to the security deed can at law be dispossessed by the sheriff 44-14-60 for the purpose of placing in possession the purchaser of the property at such sale; and this may be done notwithstanding the fact that the lease is older than the judgment, when it is junior to the security deed. Mattlage v. Mulherin’s Sons & Co., 106 Ga. 834, 32 S.E. 940, 1899 Ga. LEXIS 763 (1899). Year’s support and dower. — The title acquired under a deed under O.C.G.A. § 44-14-60 is superior to the right to a year’s support, or dower, though such right to a year’s support and dower are superior to the lien of a mortgage. When a judgment has been obtained on any indebtedness secured by the deed, before the property can be levied upon and sold, there must be a reconveyance by the grantee to the grantor. Bennett Lumber Co. v. Martin, 132 Ga. 491, 64 S.E. 484, 1909 Ga. LEXIS 340 (1909). Levy of fi. fa. — A fi. fa. issued upon a judgment rendered for a debt secured by a deed made under O.C.G.A. § 44-14-60 cannot be levied upon the realty conveyed as security until after the creditor has executed, filed, and had recorded a deed reconveying the property to the debtor; and a sale by the sheriff to the creditor, the levy having been made after the execution of such deed, but before it was either filed or recorded, is utterly void. National Bank v. Danforth, 80 Ga. 55, 7 S.E. 546, 1887 Ga. LEXIS 322 (1887). Where the plaintiff in fi. fa. has filed a deed under O.C.G.A. § 44-14-60 for the purpose of having the land levied upon which had been conveyed to plaintiff by plaintiff’s debtor as security for the debt, the sheriff, though the fi. fa. issued from a justice’s court, may make the levy without making a search for personal property or making an entry upon the fi. fa. that no such property can be found. Bennett v. McConnell, 88 Ga. 177, 14 S.E. 208, 1891 Ga. LEXIS 320 (1891). Lien of secured creditor attaching to proceeds of sale. — Where a creditor, whose debt was secured by a conveyance of land under O.C.G.A. § 44-14-60, obtained judgment, reconveyed the land to the debtor, and subsequently acquiesced in a sale of the land under an execution in favor of another creditor, and claimed the proceeds of such sale in the sheriff’s 488 44-14-60 MORTGAGES, SECURITY, LIENS hands, the lien of the secured creditor attached to such proceeds, and the purchaser at the sheriff’s sale acquired an unencumbered title. Marshall v. Hodgkins, 99 Ga. 592, 27 S.E. 748, 1896 Ga. LEXIS 455 (1896). Specifying lien on face of pleadings. — While it is the better practice, it is not essential, in suits upon notes secured by deed under O.C.G.A. § 44-14-60, to specify or declare a lien on the face of the pleadings or the judgment therein, in order to sell the land under execution by filing a deed reconveying the land, and to subject it to the special contract lien. The proof of the special lien may be made aliunde the face of the judgment or the pleadings on the note sued. Spradlin v. Kramer, 146 Ga. 396, 91 S.E. 409, 1917 Ga. LEXIS 322 (1917). Effect of failure to record. — The court does not err in awarding money to a judgment creditor, upon a levy, where it does not appear that the defendant repaid any of the money borrowed, or that the lender conveyed back the land and filed the deed in the clerk’s office. Osborne v. Hill, 91 Ga. 137, 16 S.E. 965, 1892 Ga. LEXIS 535 (1892). Status of surety. — The surety cannot sustain a claim to the property where it is levied on as that of the principal under an execution against the principal in favor of another creditor. Bank of Trion v. Parker, 43 Ga. App. 686, 160 S.E. 128, 1931 Ga. App. LEXIS 513 (1931). No judgment lien shown. — Trial court erred by granting summary judgment to a judgment lienholder because the lienholder did not establish as a matter of law that the lienholder had any legal or equitable interest in the property at any time after a quitclaim deed was executed; because the record did not establish that the lienholder had any ownership interest in the property upon which the right to seize assets could attach, the trial court erred in finding that the lienholder held a judgment lien against the property. Wells Fargo Bank, N.A. v. Twenty Six Properties, LLC, 325 Ga. App. 662, 754 S.E.2d 630, 2014 Ga. App. LEXIS 46 (2014). Transfer or Assignment Rights of transferee. — A transferee 44-14-60 of the grantee named in the security deed occupies the position of such grantee as against the grantor and those claiming under the grantor. Gilliard v. Johnston & Miller, 161 Ga. 17, 129 S.E. 434, 1925 Ga. LEXIS 293 (1925). Assignee of a security deed has legal title to the property, subject to the right of the grantor to have the realty reconveyed to the grantor upon payment of the debt. Regante v. Reliable-Triple Cee of N.J., Inc., 251 Ga. 629, 308 S.E.2d 372, 1983 Ga. LEXIS 944 (1983); Leathers v. McClain, 255 Ga. 378, 338 S.E.2d 666, 1986 Ga. LEXIS 510 (1986). Equitable interest of assignee. — While an assignment of a promissory note, or other evidence of indebtedness, secured by a deed to land executed under the provisions of O.C.G.A. § 44-14-60, does not pass to the assignee a legal title to the land itself, such assignee has an equitable interest in the security effectuated by the deed. Van Pelt v. Hurt, 97 Ga. 660, 25 S.E. 489, 1895 Ga. LEXIS 548 (1895). Enforcement of transferee’s lien. — Where the transferee of the debt secured by a deed reduces the same to judgment, all that is essential to the enforcement of a special lien in the transferee’s favor is the rendition of a general judgment thereon, the conveyance by the vendee in the security deed to the defendant of the lands embraced therein, and proof aliunde that such judgment was rendered upon the secured debt. Lively v. Oberdorfer, 216 Ga. 673, 119 S.E.2d 27, 1961 Ga. LEXIS 308 (1961). Bad faith acted to lift automatic stay of bankruptcy. — Because a debtor filed a second bankruptcy petition for the express purpose of delaying and frustrating the legitimate efforts of a secured creditor to enforce its right of foreclosure, the debtor was found to have not acted in good faith under 11 U.S.C. § 362(g); thus, cause existed to annul or lift the automatic stay pursuant to 11 U.S.C. § 362(d). GRP Fin. Servs. Corp. v. Olsen (In re Olsen), No. 06-66198-MGD, 2007 Bankr. LEXIS 614 (Bankr. N.D. Ga. Jan. 8, 2007). Written transfer of deed itself and rights of grantee. — While the transfer of negotiable promissory notes secured by an absolute conveyance of land made un- 489 44-14-60 Transfer or Assignment (Cont’d) der O.C.G.A. § 44-14-60, although the transfer be made by endorsement of the payee without recourse upon the payee, will not discharge the land from the incumbrance placed upon it by the deed, yet a mere written transfer, endorsed upon the deed, of the deed itself and the rights of the grantee therein (the payee of the note) will not pass title to the land out of the grantee and into the endorsee of the notes, as to enable the latter to convey the land back to the debtor who executed the deed to secure the notes. Henry v. McAllister, 93 Ga. 667, 20 S.E. 66, 1894 Ga. LEXIS 382 (1894). Transfer of negotiable notes. — Where a vendor of land takes notes for the purchase money, securing their payment by reservation of title personally, which notes the vendor afterwards transfers without recourse and without any transfer of the reserve title to a third party, this operates as a payment of the purchase money, the vendee’s equity becomes complete, and the vendor ceases to hold any interest in the land. Cade v. Jenkins, 88 Ga. 791, 15 S.E. 292, 1892 Ga. LEXIS 103 (1892); Henry v. McAllister, 93 Ga. 667, 20 S.E. 66, 1894 Ga. LEXIS 382 (1894). Where a deed was given under the provisions of O.C.G.A. § 44-14-60 to secure the payment of a promissory note, and the original payee afterwards transferred the note without recourse, at the same time conveying to the assignee the title to the land described in the security deed, the latter was entitled to all the rights of the original payee of the note, and all the remedies for enforcing the same. Hunt v. New England Mtg. Sec. Co., 92 Ga. 720, 19 S.E. 27, 1893 Ga. LEXIS 238 (1893); Henry v. McAllister, 93 Ga. 667, 20 S.E. 66, 1894 Ga. LEXIS 382 (1894); Gillispie v. Hunt, 145 Ga. 490, 89 S.E. 519, 1916 Ga. LEXIS 373 (1916). The transfer of a negotiable promissory note secured by a deed under the provisions of O.C.G.A. § 44-14-60 although the transfer be made by endorsement of the payee on the note without recourse upon the payee, will not discharge the land from the encumbrance placed upon it by the deed. Henry v. McAllister, 93 Ga. 667, 20 S.E. 66, 1894 Ga. LEXIS 382 (1894); Milner v. Wellhouse, 148 Ga. 275, 96 S.E. 566, 1918 Ga. LEXIS 295 (1918). Where transferee accepts bond as security for an additional loan subject to that specified in the loan deed, the transferee acquires such an equitable interest in the land as will entitle the transferee on sale of the property under the loan deed to a sufficient amount of the proceeds after discharge of the debt secured by the loan deed to satisfy the transferee’s debt; and the transferee’s right will attach from the time the transferee receives the transfer, and be superior to a subsequent materialman’s lien. Guaranty Inv. & Loan Co. v. Athens Eng’g Co., 152 Ga. 596, 110 S.E. 873, 1922 Ga. LEXIS 225 (1922). Subsequent incumbrance of same property by grantor, whether by security deed or mortgage executed by the grantor named in the prior security deed while the grantor retains an equitable estate in the land, will operate upon that equitable estate. Citizens’ Bank v. Taylor, 155 Ga. 416, 117 S.E. 247, 1923 Ga. LEXIS 85 (1923). Foreclosure Equitable foreclosure. — Where security deed, executed subsequent to two deeds to secure debt, was made to secure an indebtedness represented by a promissory note, and on its face recited the debt and the purpose to secure it, the creditor could foreclose the deed as an equitable mortgage, although the grantor therein had been discharged as a bankrupt from the payment of debts. Pusser v. A. J. Thompson & Co., 132 Ga. 280, 64 S.E. 75, 1909 Ga. LEXIS 77 (1909); Smith v. Farmers’ Bank, 165 Ga. 470, 141 S.E. 203, 1928 Ga. LEXIS 11 (1928). A deed to secure debt may be foreclosed as an equitable mortgage. Lively v. Oberdorfer, 216 Ga. 673, 119 S.E.2d 27, 1961 Ga. LEXIS 308 (1961). Suit barred by statute of limitations. — Where a deed under seal was made conveying title in order to secure an indebtedness represented by a promissory note, under O.C.G.A. § 44-14-60, and on its face it recited the debt and the purpose to secure it, although suit on the note 490 44-14-60 MORTGAGES, SECURITY, LIENS became barred by the statute of limitations, the creditor could foreclose the deed as an equitable mortgage within 20 years from its execution. Pusser v. A. J. Thompson & Co., 132 Ga. 280, 64 S.E. 75, 1909 Ga. LEXIS 77 (1909). Usurious conveyance. — A conveyance made under O.C.G.A. § 44-14-60 to secure a debt, and which is void as title on account of usury, cannot be foreclosed as an equitable mortgage. Broach v. Smith, 75 Ga. 159, 1885 Ga. LEXIS 88 (1885). Foreclosure as mortgage in federal court. — A deed absolute in form, given as security for a loan of money, and executed contemporaneously with the debtor’s notes and with a bond to reconvey, given by the grantee, all in accordance with the provisions of O.C.G.A. § 4414-60 et seq., may be foreclosed as a mortgage, by an action in equity in a federal court, notwithstanding that these provisions give a special remedy at law; for the equity jurisdiction of the federal courts cannot be limited by state legislation. Ray v. Tatum, 72 F. 112, 1896 U.S. App. LEXIS 1683 (5th Cir. 1896). A deed to real estate, given to secure a debt, may be foreclosed by the grantee as a mortgage, notwithstanding a provision therein that it is to be construed as a deed passing title, and not as a mortgage, such provision being one for the benefit of the grantee, which the grantee may waive at the grantee’s election. Merrihew v. Fort, 98 F. 899, 1899 U.S. App. LEXIS 3442 (C.C.D. Ga. 1899). The fact that the holder of a conveyance brings action to foreclose the same as a mortgage in a federal court does not 44-14-60 change its character to that of a plain mortgage, which is only a security and passes no title, so as to let in the claim of the widow of the grantor to an allowance for support out of the property, but such an allowance made in proceedings to which the grantee was not a party can apply only to the grantor’s equity of redemption. British & Am. Mtg. Co. v. Worrill, 168 F. 120, 1909 U.S. App. LEXIS 5383 (C.C.D. Ga. 1909). Claims not barred as improper deficiency actions. — Trial court erred in ruling that a bank’s claims against borrowers and guarantors for breach of promissory notes were barred as improper deficiency actions under O.C.G.A. § 44-14161(a) due to the bank’s failure to seek confirmation after the foreclosure auctions because although the bank conducted and bid at foreclosure auctions of the real property that secured the notes, the transfer of a borrower’s right of possession and the borrower’s equity of redemption to the bank as the foreclosure sale purchaser never occurred; three days after the foreclosure auctions, the bank notified the borrowers that the bank rescinded any actions taken with respect to foreclosure and that the foreclosures were not and would not be consummated, and by definition, the confirmation procedure had no application when there had been no foreclosure sale. Legacy Cmtys. Group, Inc. v. Branch Banking & Trust Co., 310 Ga. App. 466, 713 S.E.2d 670, 2011 Ga. App. LEXIS 579 (2011), aff’d in part and rev’d in part, 290 Ga. 724, 723 S.E.2d 674, 2012 Ga. LEXIS 300 (2012), vacated in part, 316 Ga. App. 496, 729 S.E.2d 612, 2012 Ga. App. LEXIS 594 (2012).