Title 23 — Equity
0 chapters · 135 sections in this title.
O.C.G.A. § 23-2-1 When equity will set aside judgment
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Reserved. Repealed by Ga. L. 1986, p. 294, § 3, effective March 26, 1986. Editor’s notes. — This Code section was based on Orig. Code 1863, § 3062; Code 1868, § 3074; Code 1873, § 3129; Code 1882, § 3129; Civil Code 1895, § 3988; Civil Code 1910, § 4585; Code 1933, § 37-220.
O.C.G.A. § 23-2-110 Scope and modes of remedy, §23-1-2
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Vested in superior courts and state-wide business court, §23-1-1. Fraud. Concurrent jurisdiction of law and equity, §23-2-50. Leaving jurisdiction of state. Ne exeat, §§23-3-20 to 23-3-25. Ne exeat. Leaving jurisdiction of the state, §§23-3-20 to 23-3-25. Power of appointment. Eq…
O.C.G.A. § 23-2-111 Execution of powers
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Faithful execution compellable, §23-2-112. EQUITY —Cont’d Powers of appointment, sale, etc. —Cont’d Execution of powers —Cont’d Relief against collusive, illusory, mistaken or defective executions, §23-2-113. Exercise by successor administrator, trustee or guardian, §23-2-116. Fa…
O.C.G.A. § 23-2-112 Illusory appointments, §23-2-113
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Jurisdiction over powers, §23-2-110. Release, relinquishment or covenant as to exercise, §23-2-117. Delivery or recordation, §23-2-118. Sections declaratory of existing law, §23-2-120. When fiduciaries or bona fide purchasers affected, §23-2-119. Writing required, §23-2-118. PRESUM…
O.C.G.A. § 23-2-113 Common carrier
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Eminent domain, §22-1-1. Condemning authority. Eminent domain, §22-1-1. Condemning body, §22-2-100. Condemnor, §§22-1-1, 22-2-1, 22-2-100. Local government condemnation for public use, §22-1-15. Confidential relations, §23-2-58. Constructive fraud, §23-2-51. Custodian. Taxpayer pr…
O.C.G.A. § 23-2-115 When private sale authorized
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Unless expressly limited in a will, deed, or other instrument creating a power of sale or unless specifically otherwise provided in such instrument, a power of sale conferred upon an executor, trustee, guardian, or attorney in fact shall authorize a private sale by the 426 23-2-11…
O.C.G.A. § 23-2-116 Trustees
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Accounting. Equity jurisdiction over matters of account, §23-2-70. U UNCONSCIONABILITY. Equity. Setting aside sale or contract for inadequate consideration, §23-2-2. UNIFORM RELOCATION ASSISTANCE AND LAND ACQUISITION POLICY ACT. General provisions, §§22-4-1 to 22-4-15. UNITED STA…
O.C.G.A. § 23-2-117 Delivery or recordation, §23-2-118
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Sections declaratory of existing law, §23-2-120. When fiduciaries or bona fide purchasers affected, §23-2-119. Writing required, §23-2-118.
O.C.G.A. § 23-2-119 Writing required, §23-2-118
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Writing required, §23-2-118. Powers of sale. Construed strictly, §23-2-114. Exercise after death, §23-2-114. Exercise by personal representative, transferee, etc., §23-2-114. Manner of sale, §23-2-114. When private sale authorized, §23-2-115. Private sale, §23-2-115.
O.C.G.A. § 23-2-130 When specific performance decreed generally
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Specific performance of a contract, if within the power of the party, will be decreed, generally, whenever the damages recoverable at law would not be an adequate compensation for nonperformance. History. — Orig. Code 1863, § 3118; Code 1868, § 3130; Code 1873, § 3186; Code 1882, …
O.C.G.A. § 23-2-131 When decreed, §23-2-131
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Specific personalty, §23-2-136. Unfair, unjust or against good conscience. Refusal of decree, §23-2-133. Vendor’s ability to comply, §23-2-134. Voluntary agreements. Enforced, §23-2-132. 570 INDEX EQUITY —Cont’d Specific performance —Cont’d When decreed generally, §23-2-130. Superi…
O.C.G.A. § 23-2-132 When voluntary agreement enforced
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Specific performance will not be decreed of a voluntary agreement or merely gratuitous promise. If, however, possession of lands has been given under such an agreement, upon a meritorious consideration, and valuable improvements have been made upon the faith thereof, equity will d…
O.C.G.A. § 23-2-133 Inadequacy of price; unfair or unjust contracts
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Mere inadequacy of price, though not sufficient to rescind a contract, may justify a court in refusing to decree a specific performance, as may any other fact showing the contract to be unfair, unjust, or against good conscience. History. — Orig. Code 1863, § 3122; Code 1868, § 31…
O.C.G.A. § 23-2-134 Vendor’s ability to comply
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The vendor seeking specific performance shall show an ability to comply substantially with his contract in every part and as to all the property. However, a vendor’s want of title or other inability as to part of the property shall not be a good answer to the vendee seeking perfor…
O.C.G.A. § 23-2-135 Specific personalty, §23-2-136
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DAMS. Eminent domain. Electric power plants, §§22-3-20 to 22-3-47. Right and authority to acquire by condemnation dams, §22-3-22. Watershed projects, flood-control projects, etc., by counties, §§22-3-100 to 22-3-102. DEATH. Power of sale. Exercise after grantor or donor’s death, §…
O.C.G.A. § 23-2-136 Privity
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Mutual accounts growing out of. Equity jurisdiction, §23-2-70. Reformation. In case of mistake. Distinguished from execution in case of mistake, §23-2-30. Rescission. Unilateral mistake of fact, §23-2-31. Specific performance. Grounds for equitable relief generally, §§23-2-130 to …
O.C.G.A. § 23-2-2 Law reviews
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— For article discussing effect of contracts involving fraud or inadequate consideration, see 4 Ga. L. Rev. 469 (1970). For article discussing the anachronistic nature of the Georgia Contracts Code as dramatized by comparing the doctrine of consideration as it is formulated in th…
O.C.G.A. § 23-2-20 Which accidents relievable in equity
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An accident relievable in equity is an occurrence, not the result of negligence or misconduct of the party seeking relief in relation to a contract, as was not anticipated by the parties when the contract was entered into, which gives an undue advantage to one of them over anothe…
O.C.G.A. § 23-2-21 Mistake of law or fact, §23-2-21
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Draftsman or other agent, §23-2-23. Effect of instrument on part of contracting parties, §23-2-22. Rescission for unilateral mistake, §23-2-31. When relieved, §§23-2-21, 23-2-24.
O.C.G.A. § 23-2-22 Mistake of law in instrument by contracting parties
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An honest mistake of the law as to the effect of an instrument on the part of both contracting parties, when the mistake operates as a gross injustice to one and gives an unconscionable advantage to the other, may be relieved in equity. History. — Orig. Code 1863, § 3055; Code 18…
O.C.G.A. § 23-2-23 APPEALS
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Eminent domain. Petroleum pipelines and gas pipelines. Certificate of public convenience and necessity. Review of decision to issue or deny, §22-3-83. Proceeding before assessors. Appeal to jury in superior court, §22-2-80. Effect of payment on right of appeal, §22-2-82. Effect on…
O.C.G.A. § 23-2-24 When mistake of fact relieved
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In all cases of a mistake of fact material to the contract or other matter affected by it, if the complaining party applies within a reasonable time, equity will grant relief. 300 History. — Orig. Code 1863, § 3058; Code 1868, § 3070; Code 1873, § 3125; Code 1882, § 3125; Civil C…
O.C.G.A. § 23-2-25 Form of conveyance contrary to intent
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If the form of conveyance is, by accident or mistake, contrary to the intention of the parties in their contract, equity shall interfere to make it conform thereto. History. — Orig. Code 1863, § 3047; Code 1868, § 3059; Code 1873, § 3114; Code 1882, § 3114; Civil Code 1895, § 397…
O.C.G.A. § 23-2-26 Accident or mistake in execution of power
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Accident or mistake in the execution of a power or causing the defective execution of the power will be remedied in equity. History. — Orig. Code 1863, § 3061; Code 1868, § 3073; Code 1873, § 3128; Code 1882, § 3128; Civil Code 1895, § 3986; Civil Code 1910, § 4583; Code 1933, § …
O.C.G.A. § 23-2-27 Equitable interference not authorized by mere ignorance of law
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Mere ignorance of the law on the part of the party himself, where the facts are all known and there is no misplaced confidence and no artifice, deception, or fraudulent practice is used by the other party either to induce the mistake of law or to prevent its correction, shall not a…
O.C.G.A. § 23-2-28 VENUE
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Eminent domain. Telegraph and telephone lines along railroad rights of way. Location of proceedings and hearings, §§22-3-3, 22-3-4. Quia timet against all the world, §23-3-62. VERDICTS.
O.C.G.A. § 23-2-29 Ignorance of fact
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Absent fraud, §23-2-29. Mere ignorance of law, §23-2-27. Mistake in judgment of value, §23-2-28. 564 INDEX EQUITY —Cont’d Accident and mistake —Cont’d Interference of equity not authorized —Cont’d Mutual ignorance of fact, §23-2-28. Volunteers in general, §23-2-33. Judgment of va…
O.C.G.A. § 23-2-3 COMPROMISE AND SETTLEMENT
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Electric transmission lines. Construction of lines with operating voltage of 115 kilovolts or greater. Route selection, settlement negotiations with property owners, §22-3-161. Eminent domain. Electric transmission lines. Construction of lines with operating voltage of 115 kilovo…
O.C.G.A. § 23-2-30 Reformation and execution of contract in case of mistake distinguished
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A distinction exists between reforming a contract and executing a contract in case of mistake. To authorize the former, the court shall be satisfied by the evidence that the mistake was mutual; but the court may refuse to act in the latter case if the mistake is confined to the par…
O.C.G.A. § 23-2-31 When relieved, §§23-2-21, 23-2-24
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Mistakes relievable in equity generally, §23-2-21. Negligence of complaining party preventing relief, §23-2-32. When negligent complainant granted relief, §23-2-32. Original parties. Relief against, §23-2-34. Privies. Relief against, §23-2-34. Reforming contract in case of mistak…
O.C.G.A. § 23-2-32 When negligent complainant granted relief
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(a) The negligence of the complaining party, preventing relief in equity, is that want of reasonable prudence, the absence of which would be a violation of legal duty. (b) Relief may be granted even in cases of negligence by the complainant if it appears that the other party has …
O.C.G.A. § 23-2-34 MISTAKE OF FACT
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Grounds for equitable relief. Accident and mistake generally, §§23-2-20 to 23-2-34. MUNICIPAL CORPORATIONS —Cont’d Relocation assistance and land acquisition. Exercise of powers by municipality with population of 350,000 or more, §22-4-11.1. Taxpayer protection against false clai…
O.C.G.A. § 23-2-50 Legal fraud
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Misrepresentation, §23-2-52. Proving existence, §23-2-57. Suppression of fact, §23-2-53. Surprise as a form of fraud, §23-2-54. Trademarks, names or devices. Use of similar trademarks, names or devices, §23-2-55. 572 INDEX FRAUD AND DECEIT —Cont’d Existence of fraud. Proving, §23…
O.C.G.A. § 23-2-51 Fraud as actual or constructive
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(a) Fraud may be actual or constructive. (b) Actual fraud consists of any kind of artifice by which another is deceived. Constructive fraud consists of any act of omission or commission, contrary to legal or equitable duty, trust, or confidence justly reposed, which is contrary to …
O.C.G.A. § 23-2-52 Misrepresentation as legal fraud
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Misrepresentation of a material fact, made willfully to deceive or recklessly without knowledge and acted on by the opposite party or 338 23-2-52 made innocently and mistakenly and acted on by the opposite party, constitutes legal fraud. History. — Orig. Code 1863, § 3105; Code 1…
O.C.G.A. § 23-2-53 Suppression of fact as fraud
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Suppression of a material fact which a party is under an obligation to communicate constitutes fraud. The obligation to communicate may arise from the confidential relations of the parties or from the particular circumstances of the case. History. — Orig. Code 1863, § 3106; Code 1…
O.C.G.A. § 23-2-54 Surprise as a form of fraud
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Anything which happens without the agency or fault of the party affected by it, tending to disturb and confuse his judgment or to mislead him, of which the opposite party takes an undue advantage, is in equity a surprise and is a form of fraud for which relief is granted. History…
O.C.G.A. § 23-2-55 Trusts
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Jurisdiction over accounts, §23-2-70. Unclean hands. Fault unequal, §23-1-15. Who would have equity must do equity, §23-1-10. Unconscionability. Setting aside sale or contract for inadequate consideration, §23-2-2. Unequal equities. Superior equity prevails, §23-1-11. Unequal fau…
O.C.G.A. § 23-2-56 Consummation of fraud
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Fraud may be consummated by signs or tricks, or through agents employed to deceive, or by any other unfair way used to cheat another. History. — Orig. Code 1863, § 3107; Code 1868, § 3119; Code 1873, § 3176; Code 1882, § 3176; Civil Code 1895, § 4028; Civil Code 1910, § 4625; Cod…
O.C.G.A. § 23-2-57 Proving existence of fraud
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Fraud may not be presumed but, being in itself subtle, slight circumstances may be sufficient to carry conviction of its existence. History. — Orig. Code 1863, § 2715; Code 1868, § 2709; Code 1873, § 2751; Code 1882, § 2751; Civil Code 1895, § 4029; Civil Code 1910, § 4626; Code …
O.C.G.A. § 23-2-58 Burch v
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Chase Manhattan Mortg. Corp., No. 1:07-CV-0121-JOF, 2008 U.S. Dist. LEXIS 76595 (N.D. Ga. Sept. 15, 2008). Homeowner sufficiently alleged a claim for breach of contract against the homeowner’s mortgage lender based on a promise in the security agreement that the lender would fore…
O.C.G.A. § 23-2-59 Acquisition of antagonistic rights by one in confidential relationship
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Where, by the act or consent of parties or the act of a third person or of the law, one person is placed in such relation to another that he becomes interested for him or with him in any subject or property, he is prohibited from acquiring rights in that subject or property which…
O.C.G.A. § 23-2-60 COPARTNERS
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Ne exeat. When granted, §23-3-20. COSTS. Eminent domain. Proceeding before special masters. Compensation assessed as court cost, §22-2-106. Reasonable costs and expenses to owner. Final judgment prohibiting condemnation, proceeding abandoned, §22-1-12. Relocation assistance. Liti…
O.C.G.A. § 23-2-70 Scope of equity jurisdiction over matters of account
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Equity jurisdiction over matters of account shall extend to: (1) Mutual accounts growing out of privity of contract; (2) Cases where accounts are complicated and intricate; (3) Cases where a discovery or writ of ne exeat is prayed and granted; (4) Cases where the account is of a …
O.C.G.A. § 23-2-71 Entitlement to contribution; when equity has jurisdiction
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In cases of joint, joint and several, or several liabilities of two or more persons, where all are equally bound to bear the common burden and one has paid more than his share, he shall be entitled to contribution from the others; and whenever the circumstances are such that an a…
O.C.G.A. § 23-2-72 Apportionment of contract, rent, or hire
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Apportionment of a contract or of rent or hire may, from peculiar circumstances rendering the common-law remedy incomplete, become the subject of equitable jurisdiction. History. — Orig. Code 1863, § 3067; Code 1868, § 3079; Code 1873, § 3134; Code 1882, § 3134; Civil Code 1895, …
O.C.G.A. § 23-2-73 Discharge of encumbrances affecting several interests
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Where several persons are interested in an estate as tenants for years, or for life, or in remainder or reversion, and encumbrances are to be discharged, the equitable division of the burden, according to the several interests, shall be a question for equitable interference. Hist…
O.C.G.A. § 23-2-74 Burden of distinguishing mingled property
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If a party who has charge of the property of others shall so confound it with his own that the line of distinction cannot be drawn, all the inconvenience shall be thrown upon him who causes the confusion; and he shall distinguish his own property or lose it. History. — Orig. Code…
O.C.G.A. § 23-2-75 Scope of jurisdiction, §23-2-70
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Setoff, §23-2-76. Jurisdiction. Equity jurisdiction over matters of account, §23-2-70. Mutual accounts. Equity jurisdiction. Accounts growing out of privity of contract, §23-2-70. Ne exeat. Equity jurisdiction over matters of account, §23-2-70. Trust funds. Equity jurisdiction ov…
O.C.G.A. § 23-2-76 Equitable setoff
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Regarding a setoff, equity generally follows the law; but, if there is an intervening equity not reached by the law or if the setoff is of an equitable nature, equity shall take jurisdiction to enforce the setoff. History. — Orig. Code 1863, § 3072; Code 1868, § 3084; Code 1873, …