Notice sufficient to excite attention and put a party on inquiry shall be notice of everything to which it is afterwards found that such inquiry might have led. Ignorance of a fact due to negligence shall be equivalent to knowledge in fixing the rights of parties.
(Civil Code 1895, § 3933; Civil Code 1910, § 4530; Code 1933, § 37-116.)
Law reviews.- For article, "A Comprehensive Analysis of Georgia RICO," see 9 Ga. St. U.L. Rev. 537 (1993). For article, "Noticing the Bankruptcy Sale: The Purchased Property May Not Be as 'Free and Clear of All Liens, Claims and Encumberances' as You Think," see 15 (No. 5) Ga. St. B.J. 12 (2010). For article, "Eleventh Circuit Survey: January 1, 2013 - December 31, 2013: Casenote: The Decline and Fall of Constructive Notice," see 65 Mercer L. Rev. 1203 (2014).
JUDICIAL DECISIONSANALYSIS
General Consideration
Application of section to waiver clause in contracts of insurance.
- The provisions of this section have no application to the subject of waiver, as related to conditions imposing forfeitures in contracts of insurance. Prudential Ins. Co. of Am. v. Perry, 121 Ga. App. 618, 174 S.E.2d 570 (1970); Shield Ins. Co. v. Kitt, 143 Ga. App. 48, 237 S.E.2d 515 (1977), rev'd on other grounds, 240 Ga. 619, 241 S.E.2d 824 (1978).
Actual notice.
- Actual notice is shown, when the proof, positive or presumptive, authorizes the clear and satisfactory conclusion, that the purchaser had knowledge of the incumbrance, or would have had knowledge if the purchaser had not willfully declined to search for it, and thus the purchaser's conscience is affected by it; and constructive notice, is that which arises out of a legal inference, or presumption strictly speaking, such as notice from a register, record, or some such matter; and which does not affect the conscience of the purchaser because, notwithstanding the legal presumption, the purchaser may never have had absolute knowledge of the record or been put upon inquiry in relation to it. Citizens & S. Bank v. Morris State Bldg. Corp., 243 Ga. 169, 253 S.E.2d 89 (1979).
Existence of notice determined by jury.
- The question as to whether the defendant had actual notice, or as to whether the circumstances were sufficient to put the defendant on notice of the state of the title to certain property were questions to be determined by the jury. Dollar v. Dollar, 214 Ga. 499, 105 S.E.2d 736 (1958).
General reputation is not notice of fact.
- While general reputation or notoriety of a proven fact may be admissible in evidence, to be considered by the jury, with other evidence, on the question of notice of such fact, such reputation or notoriety in the community is not itself notice of the fact. Roebuck v. Payne, 109 Ga. App. 525, 136 S.E.2d 399 (1964).
Construction with O.C.G.A.
§ 23-6-64. - Findings entered by a special master, which determined that the disputed portion of an alley belonged to a landowner, and not the neighbors, by operation of the landowner's prior recorded deed, was not clearly erroneous, as: (1) the landowner received the property via a valid deed; (2) the neighbors failed to put the landowner on notice of their claim; and (3) the neighbors' claim of possession and use was insufficient. Cernonok v. Kane, 280 Ga. 272, 627 S.E.2d 14 (2006).
Inquiry notice based on possession.
- Trial court erred by granting summary judgment to the plaintiff because the record showed that there was an issue of fact as to whether the defendants' possession of the property put the plaintiff on inquiry notice of the defendants' title despite the defendants' deed not being recorded. Caraway v. Spillers, 332 Ga. App. 588, 774 S.E.2d 162 (2015).
Cited in North Ga. Trust & Banking Co. v. Hulme, 35 Ga. App. 627, 134 S.E. 200 (1926); Planing Mill v. Augusta Veneer Co., 35 Ga. App. 686, 134 S.E. 790 (1926); Darden v. Washington, 35 Ga. App. 777, 134 S.E. 813 (1926); Fender v. Hodges, 38 Ga. App. 78, 142 S.E. 753 (1928); Todd v. Lewis, 169 Ga. 1, 149 S.E. 562 (1929); Mathis v. Mathis, 42 Ga. App. 1, 155 S.E. 88 (1930); Investor's Syndicate v. Thompson, 172 Ga. 203, 158 S.E. 20 (1931); United Eng'rs & Constructors, Inc. v. Fiat Metal Mfg. Co., 175 Ga. 509, 165 S.E. 609 (1932); Georgia R.R. Bank & Trust Co. v. Liberty Nat'l Bank & Trust Co., 180 Ga. 4, 177 S.E. 803 (1934); Shaw v. National Life Ins. Co., 51 Ga. App. 794, 181 S.E. 872 (1935); Fite v. Walker, 183 Ga. 46, 187 S.E. 95 (1936); H.C. Witmer Co. v. Petty, 54 Ga. App. 377, 187 S.E. 908 (1936); Rowe v. Cole, 183 Ga. 477, 188 S.E. 668 (1936); Heath v. Davis, 184 Ga. 704, 192 S.E. 727 (1937); Mutual Benefit Health & Accident Ass'n v. Hulme, 57 Ga. App. 876, 197 S.E. 85 (1938); Groover v. Savannah Bank & Trust Co., 186 Ga. 476, 198 S.E. 217 (1938); Georgia State Sav. Ass'n v. Wilson, 189 Ga. 21, 5 S.E.2d 14 (1939); Lewis v. Patterson, 191 Ga. 348, 12 S.E.2d 593 (1940); Federal Land Bank v. Drake, 64 Ga. App. 684, 14 S.E.2d 178 (1941); Pound v. Faulkner, 193 Ga. 413, 18 S.E.2d 749 (1942); Joel v. Publix-Lucas Theater, Inc., 193 Ga. 531, 19 S.E.2d 730 (1942); Hall v. Turner, 198 Ga. 763, 32 S.E.2d 829 (1945); Cooper v. Aycock, 199 Ga. 658, 34 S.E.2d 895 (1945); Wren v. Wren, 199 Ga. 851, 36 S.E.2d 77 (1945); Toms v. Knighton, 199 Ga. 858, 36 S.E.2d 315 (1945); Kilby v. Sawtell, 203 Ga. 256, 46 S.E.2d 117 (1948); Adler v. Adler Co., 205 Ga. 818, 55 S.E.2d 13 (1949); Ogletree v. West Lumber Co., 208 Ga. 43, 64 S.E.2d 894 (1951); United States v. West, 132 F. Supp. 934 (N.D. Ga. 1955); Exchange Ins. Ass'n v. Mathews, 93 Ga. App. 470, 92 S.E.2d 121 (1956); Ballentine Motors of Ga., Inc. v. Nimmons, 93 Ga. App. 708, 92 S.E.2d 714 (1956); Peoples Loan & Fin. Corp. v. Halbeisen Motors Co., 271 F.2d 538 (5th Cir. 1959); Dixie Belle Mills, Inc. v. Specialty Mach. Co., 217 Ga. 104, 120 S.E.2d 771 (1961); Frye v. Commonwealth Inv. Co., 107 Ga. App. 739, 131 S.E.2d 569 (1963); Cohen v. Gotlieb, 108 Ga. App. 122, 132 S.E.2d 93 (1963); Kamlapat v. Purvis-Wade Carpet Mills, 112 Ga. App. 781, 146 S.E.2d 138 (1965); D.H. Overmyer Co. v. Joe Summers Roofing Co., 120 Ga. App. 188, 169 S.E.2d 821 (1969); Buffalo Ins. Co. v. Star Photo Finishing Co., 120 Ga. App. 697, 172 S.E.2d 159 (1969); Robinson v. Transcontinental Gas Pipe Line Corp., 306 F. Supp. 201 (N.D. Ga. 1969); Hodges v. Youmans, 122 Ga. App. 487, 177 S.E.2d 577 (1970); Goldman v. Hart, 134 Ga. App. 422, 214 S.E.2d 670 (1975); Brannon v. First Nat'l Bank, 137 Ga. App. 275, 223 S.E.2d 473 (1976); Crymes v. Ryland Group, Inc., 143 Ga. App. 436, 238 S.E.2d 764 (1977); Bohannon v. Manhattan Life Ins. Co., 555 F.2d 1205 (5th Cir. 1977); Gulden v. Newberry Wrecker Serv., Inc., 154 Ga. App. 130, 267 S.E.2d 763 (1980); Palmetto Capital Corp. v. Smith, 284 Ga. App. 819, 645 S.E.2d 9 (2007); Wells Fargo Bank, N.A. v. Gordon, 292 Ga. 474, 749 S.E.2d 368 (2013).
Scope of Notice
Effect of notice sufficient to excite attention.
- Whatever is notice enough to excite attention and put the party on guard and call for inquiry is also notice of everything to which it is afterwards found that such inquiry might have led, although all was unknown for want of investigation; that is, when a person has sufficient information to lead the person to a fact, the person shall be deemed cognizant of the fact. Southern Ry. v. Watson, 74 Ga. App. 317, 39 S.E.2d 707 (1946).
Failure to take any action with respect to notice sufficient to excite inquiry justifies a presumption against the existence or validity of the right which one later seeks to assert, or justifies the presumption that if one ever possessed such a right it has been abandoned or waived or has been satisfied. Cohen v. Glass, 225 Ga. 646, 171 S.E.2d 118 (1969).
Judicial testimony serving as notice.
- When defendant loan association had notice of the plaintiff's equity in the land at and before the time the association took its security deed from another person, such security deed was subject to cancellation as between the plaintiff and the association, whether or not it might still be treated as valid against the grantor to the extent of the latter's interest. Fulmore v. Macon Fed. Savs. & Loan Ass'n, 191 Ga. 151, 11 S.E.2d 790 (1940).
A purchaser, having knowledge such as would lead a reasonable man to make inquiries which would disclose facts sufficient to bar the rights of the grantor, is also personally barred. Hendrix v. W.R. Altman Lumber Co., 145 F.2d 501 (5th Cir. 1944).
When the plaintiff contended that the defendant had actual notice of the plaintiff's claim of equitable title to the property because of testimony of the plaintiff delivered in the defendant's presence in the court of ordinary (now probate court), the rule announced by this section that one having only such notice as would excite attention and put one on inquiry would be chargeable with notice of everything to which such inquiry might have led, was not directly involved, and if a charge of this principle was desired, a written request therefor should have been made. Dollar v. Dollar, 214 Ga. 499, 105 S.E.2d 736 (1958).
Inquiry notice of government officials.
- When a clerk sought to renew the clerk's bond in a manner not recognized by law, this irregularity alone was sufficient to put the mayor and council on inquiry and to affect them with constructive knowledge of every condition and circumstance which a proper inquiry would have disclosed, including the fact that the only contract actually proposed by the company was one which should embrace the terms of the continuation certificate. Nowell v. Mayor of Monroe, 177 Ga. 648, 171 S.E. 136, answer conformed to, 47 Ga. App. 665, 171 S.E. 143 (1933).
A municipality is charged, as a matter of law, with notice that a clerk and treasurer as agent of a fidelity company cannot consummate a valid contract in the nature of an official bond without a writing signed by the company. Nowell v. Mayor of Monroe, 177 Ga. 648, 171 S.E. 136 (1933).
Judicial statement as notice.
- Whether a judge's statement is intended merely as a finding on an issue of fact or as a ruling that under the evidence the party was charged with knowledge as a matter of law; the evidence may be sufficient to authorize a finding of notice. Alropa Corp. v. Snyder, 182 Ga. 305, 185 S.E. 352 (1936).
Party's duty with respect to jury and giving notice.
- When parties are furnished with a list of the jury, it is their duty, if they know that any of the jurors are disqualified, to call attention to the disqualification, or the disqualification will be held to have been waived; if they have reasonable grounds to suspect that any of the jurors are disqualified, it is their duty to call attention to the fact, so that due inquiry may be made of the panel. Kennedy v. State, 191 Ga. 22, 11 S.E.2d 179 (1940).
The court did not err in overruling ground of motion for new trial based on alleged disqualification of juror whose mind, it was claimed, was not perfectly impartial between the state and the accused, when on consideration of the evidence introduced by the defendant and the state in reference to this ground, the judge was authorized to find that the juror was not disqualified as contended. Kennedy v. State, 191 Ga. 22, 11 S.E.2d 179 (1940).
Lease between a debtor and a county, which was recorded in county records, was properly attested, and contained a full legal description of real property, and which referred to a trust indenture 27 times, provided constructive notice to a bona fide purchaser of the unrecorded indenture and the mortgage lien it created and gave rise to a duty to inquire further, which would have led to discovery of the unrecorded lien. Thus, because the mortgage lien was enforceable against a bona fide purchaser under Georgia law, it was not avoidable by a Chapter 11 trustee or a debtor in possession. Detention Mgmt., LLC v. UMB Bank, NA (In re Mun. Corr., LLC), 501 Bankr. 119 (Bankr. N.D. Ga. 2013).
Effect of unattested signature.- Trustee could not avoid a creditor's security interests under 11 U.S.C. § 544 because a security deed provided constructive notice of the creditor's interest in the properties despite the fact that the nondebtor wife's signature was not attested in compliance with Georgia law. MacArthur v. Am. Gen. Fin. Servs. (In re MacArthur), 430 Bankr. 300 (Bankr. N.D. Ga. 2010).
When the vendor of an interest in real property is in prison the vendee is put on notice of the lien for costs, or notice of a fact which, if diligently investigated, would have disclosed the lien. Pound v. Faulkner, 193 Ga. 413, 18 S.E.2d 749 (1942).
A recorded deed, in order to operate as a constructive notice to a bona fide purchaser of land, must be a link in the purchaser's chain of title. Real Estate Operators, Inc. v. McMahon, 171 Ga. 454, 155 S.E. 755 (1930).
The proper recording of a security deed is notice to the entire world of its lien from that date and such notice continues until it is properly canceled of record. Rossville Fed. Sav. & Loan Ass'n v. Chase Manhattan Bank, 223 Ga. 188, 154 S.E.2d 243 (1967).
One claiming title to lands is chargeable with notice of every matter which appears in one's deed, and of any matters which appear on the face of any deed, decree, or other instrument forming an essential link in the chain of instruments through which one deraigns title, and of whatever matters one would have learned by any inquiry which the recitals of those instruments made it one's duty to pursue. Henson v. Bridges, 218 Ga. 6, 126 S.E.2d 226 (1962).
Notice in real estate transactions.
- When an inquiry made by the prospective purchaser of defendant, or an examination by the defendant of the public records of the county, would have resulted in the discovery of unpaid retention of title contract, this is sufficient notice. Shippen v. Georgia Power Co., 172 Ga. 913, 159 S.E. 268 (1931).
When the security deed was accepted after being expressly told by the petitioner of the petitioner's equitable interest in the land (as to which there was evidence though conflicting), the fact that the records were fully examined and did not disclose any such equitable interest, but did disclose the legal title of the grantor in the security deed, would not excuse failure of the grantee in the security deed to make inquiry of the petitioner as to the facts upon which the petitioner based the petitioner's claim of interest. Bell v. Bell, 178 Ga. 225, 172 S.E. 566 (1934).
The possession of the tenant being the possession of the landlord, and the landlord having apparently executed an absolute deed conveying to another, and that deed being recorded, purchaser would be authorized to assume that, as a matter of law, the possession of the tenant was held under the grantee, and not adversely to the latter's title. Chestnut v. Weekes, 180 Ga. 701, 180 S.E. 716 (1935).
The continued possession of a grantor who executes an absolute deed demands that one who purchases from the grantee inquire into the right of the grantee's occupancy. Chandler v. Georgia Chem. Works, 182 Ga. 419, 185 S.E. 787 (1936).
A purchaser who was informed by reservation in the purchaser's deed of the existence of a contract for the removal of timber from that land, was chargeable with notice of the terms of such contract. Hendrix v. W.R. Altman Lumber Co., 145 F.2d 501 (5th Cir. 1944).
That a recorded security deed from a grantor to the grantee contained an incorrect land lot designation did not mean that a mortgagee of the property was not on notice of the deed under O.C.G.A. § 44-2-2(b) because the incorporation of the subdivision plat in the deed provided a key to locating the property. Therefore, the grantee's deed was valid. Deljoo v. SunTrust Mortg., Inc., 284 Ga. 438, 668 S.E.2d 245 (2008).
Constructive and inquiry notice.- Purchasers of land are charged with constructive notice of recorded instruments and the concept of inquiry notice. For a discussion of the balance between these concepts, see Stearns Bank, N.A. v. Rent-A-Tent, Inc. (In re Rent A Tent, Inc.), 468 Bankr. 442 (Bankr. N.D. Ga. 2012).
Validation order issued by a superior court authorizing a county to incur indebtedness did not give notice to a purchaser of the existence of a trust indenture or any interest of a bond trustee in real property as a matter of constructive or inquiry notice as a title examiner did not have to investigate pleadings and orders in litigation in which the seller of property was a party. Detention Mgmt., LLC v. UMB Bank, NA (In re Mun. Corr., LLC), 501 Bankr. 119 (Bankr. N.D. Ga. 2013).
Even though recorded, an unsigned security deed did not provide constructive notice to a bona fide purchaser under O.C.G.A. §§ 44-5-30 and44-14-33 as in effect in 2014 when the security deed was recorded. However, the security deed referenced and incorporated a waiver, which was properly executed and attested, and the waiver referenced and incorporated the security deed and, thus, the security deed and waiver were effective under Georgia law to provide inquiry notice to a subsequent purchaser and, accordingly, the trustee could not avoid the defendant's interest because the trustee did not qualify as a bona fide purchaser of real property. Kelley v. USAA Fed. Sav. Bank (In re Jones), 580 Bankr. 916 (Bankr. M.D. Ga. 2017).
Chapter 7 trustee, as a bona fide purchaser for value, could not take the property at issue free of the creditor's security deed as to the debtor wife's interest in the property because the recording of the security deed provided constructive notice to the trustee of the creditor's interest in the property. Pettie v. RBC Mortg. Co. (In re Jackson), Bankr. (Bankr. N.D. Ga. Sept. 17, 2019).
Knowledge chargeable to a party after the party is put on inquiry is not limited to such knowledge only as would be gained by an examination of the public records. Dyal v. McLean, 188 Ga. 229, 3 S.E.2d 571 (1939); Collins v. Freeman, 226 Ga. 610, 176 S.E.2d 704 (1970).
Inquiry notice.- When a Chapter 7 debtor purchased a home and paid off a bank's existing security interest with funds borrowed from a creditor, the creditor's security deeds, which were recorded along with the debtor's warranty deed several weeks after the closing of the home purchase and the creditor's loan, were perfected at the time they were executed and delivered within the meaning of 11 U.S.C. § 547(e)(1)(A) because a bona fide purchaser would have had inquiry notice of them at all times prior to their recordation based on the debtor's absence of record title and the existence of the cancelled security deed on the property in favor of the bank. Watts v. Argent Mortg. Co., LLC (In re Hunt), Bankr. (Bankr. N.D. Ga. Feb. 23, 2007).
When a Chapter 7 trustee sought to avoid two security deeds the debtor gave to a mortgage company on the ground that the security interests were made within 90 days of the filing of the debtor's bankruptcy case and were therefore avoidable under 11 U.S.C. § 547(b)(4)(A), the trustee failed. The mortgage company's security deeds were perfected from July 14, 2004, the date a hypothetical bona fide purchaser would have had such notice, as set forth in O.C.G.A. § 23-1-17, and the date of perfection was within 10 days of the date of the transfer of property; accordingly, the transfer was made before the 90-day reachback period commenced on July 20, 2004, and the trustee could not avoid the deeds. Watts v. Argent Mortg. Co., LLC (In re Hunt), F.3d (11th Cir. Dec. 18, 2008)(Unpublished).
Sufficient notice of airport easement.- Owner of property adjacent to a bankruptcy debtor's private airport had an express easement to use the airport, even though the easement was not recorded until after the debtor purchased the airport, since the debtor had sufficient notice of the easement through visible indications such as taxiways, roads, and the owner's use of the airport. Flyboy Aviation Props., LLC v. Franck, 501 Bankr. 808 (Bankr. N.D. Ga. 2013).
Fixture filing contained sufficient information to put purchaser on notice.- Under Georgia law, a fixture filing contained sufficient information to put a purchaser on notice of the existence of a bond trustee's prior unrecorded interest in the real property under an indenture, and the references in the fixture filing to the assignment and pledge of the debtor's interest would excite the attention of a purchaser and trigger the duty to inquire further into the interest held by the bond trustee. That inquiry would include an examination of the indenture that would give the purchaser notice of the bond trustee's mortgage and, thus, the mortgage lien was enforceable against a bona fide purchaser, and the mortgage lien was not avoidable under the Bankruptcy Code. Detention Mgmt., LLC v. UMB Bank, NA (In re Mun. Corr., LLC), 501 Bankr. 119 (Bankr. N.D. Ga. 2013).
No duty to inquire arose.
- 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).
Trustee not on inquiry notice.- Chapter 7 trustee was a bona fide purchaser for value as of the petition date under Georgia law as no security deed was of record in the debtors' chain of title and there was nothing in the record to put the trustee on inquiry notice of the existence of a bank's unrecorded security deed and, thus, the trustee could avoid the bank's security deed under 11 U.S.C. § 544(a)(3) and recover the property for the benefit of the estate under 11 U.S.C. § 550. The court rejected the bank's argument that the bank should be equitably subrogated to the rights of a prior lender whose loan was satisfied by the bank's loan because even if the bank was correct, a subrogee could have no greater rights than the party to whose rights it was subrogated, and the lender cancelled the lender's security deed prior to the petition date so that any subrogated rights of the bank were terminated at the same time. Ogiers v. Wells Fargo Bank, N.A. (In re Phillips), 465 Bankr. 336 (Bankr. N.D. Ga. 2012).
Knowledge of county's ownership insufficient for inquiry.
- Although a county failed to comply with O.C.G.A. § 36-9-2 by recording a transfer in the minutes when the county conveyed the county's interest in property the county had formerly acquired by eminent domain to the county development authority, a subsequent purchaser was a bona fide purchaser without notice of this irregularity under O.C.G.A. § 23-1-20. Knowledge of the county's ownership was insufficient to excite inquiry. Darling Int'l, Inc. v. Carter, 294 Ga. 455, 754 S.E.2d 347 (2014).
Affidavit not part of property's chain of title.- With respect to the issue of whether a Chapter 7 trustee was a bona fide purchaser under 11 U.S.C. § 544 of the debtor husband's interest, the fact that a corrective deed was cross-indexed with a special warranty deed did not pull the corrective deed into the property's chain of title. A bank's analogy to recordable affidavits under Georgia law was inapposite because, setting aside that the statute applied specifically to affidavits containing particular information, nothing in that statute stated that cross-indexing a recordable affidavit made the affidavit part of a property's chain of title. Bank of Am., N.A. v. Adams (In re Adams), 583 Bankr. 541 (Bankr. N.D. Ga. 2018).
Genuine issue of fact as to inquiry notice of unrecorded deed.
- Trial court erred by granting summary judgment to the plaintiff because the record showed that there was an issue of fact as to whether the defendants' possession of the property put the plaintiff on inquiry notice of the defendants' title despite the defendants' deed not being recorded. Caraway v. Spillers, 332 Ga. App. 588, 774 S.E.2d 162 (2015).
Notice of need to confirm guardian's authority to convey children's interest.
- Trial court did not err in denying purchasers and the holders of two outstanding security deeds bona fide purchaser status because a quitclaim deed showed on the deed's face that a parent signed the deed as the children's purported "guardian"; thus, the designation of a "guardian" in the chain of title put the purchasers and holders on notice of the need to confirm the parent's legal authority to convey the children's interest in the property. Chase Manhattan Mortg. Corp. v. Shelton, 290 Ga. 544, 722 S.E.2d 743 (2012).
Knowledge chargeable to a party, after the party is put on notice, extends to such knowledge as diligent inquiry would have disclosed. Howell v. United States, 519 F. Supp. 298 (N.D. Ga. 1981).
Once prospective purchaser of property finds person in actual, open, visible, exclusive, and unambiguous possession of the property, one has an affirmative duty to inquire of the possessor concerning one's rights in the premises and as a consequence of one's failure to do so, one may not prevail as a purchaser for value without notice. Bacote v. Wyckoff, 251 Ga. 862, 310 S.E.2d 520 (1984).
Chapter 7 trustee was not entitled to sell a debtor's property because the trustee was not a bona fide purchaser without notice; an examination of the deed book and page numbers used in transfers and assignments would have alerted a hypothetical purchaser to the uncertainty concerning the status of both assignees' interest in the property. The trustee's powers under 11 U.S.C. § 544(a)(3) did not cut off the first assignee's rights to seek reformation of the mistakenly cancelled first deed because the second assignee's quitclaim release of the instrument assigned to the first assignee was sufficient to constitute notice that would excite attention and put a party on inquiry under O.C.G.A. § 23-1-17. Household Fin. Servs. v. Neighbors (In re Neighbors), Bankr. (Bankr. S.D. Ga. Oct. 11, 2006).
Negligence
Equity requires diligence, and will not do for one that which one could have done personally but for one's own negligence. Glens Falls Indem. Co. v. Liberty Mut. Ins. Co., 202 Ga. App. 752, 44 S.E.2d 543 (1947).
An equitable action to cancel a deed on the ground of fraud, which clearly shows that the complainant failed to use even slight diligence to discover the fraud, fails to allege a cause of action. Equity will not grant relief to one whose long delay renders the ascertainment of the truth difficult, though no legal limitation bars the action. Whitfield v. Whitfield, 204 Ga. 64, 48 S.E.2d 852 (1948).
When a creditor did not exercise diligence before the creditor accepted a warranty deed in satisfaction of the creditor's debt, the creditor was chargeable with the knowledge that timber had been cut from the land. Westbrook v. Beusse, 79 Ga. App. 654, 54 S.E.2d 693 (1949).
If by negligence one voluntarily remains ignorant of a fact materially affecting one's interest and subsequently loses a right or property, one should not expect equity to do that for one which one refuses to do for oneself. Cohen v. Glass, 225 Ga. 646, 171 S.E.2d 118 (1969).
Negligent ignorance is equivalent to knowledge. Southern Ry. v. Watson, 74 Ga. App. 317, 39 S.E.2d 707 (1946).
Equity will not relieve a person from the person's erroneous acts or omissions resulting from the person's own negligence. Mangham v. Hotel & Restaurant Supply Co., 107 Ga. App. 619, 131 S.E.2d 74 (1963).
In the sale of real estate and when there are no confidential relations alleged, the law will not protect a party in the party's own negligence. Westbrook v. Beusse, 79 Ga. App. 654, 54 S.E.2d 693 (1949).
When a purchaser has knowledge of any fact sufficient to put a prudent man upon an inquiry which, if prosecuted with ordinary diligence, would lead to actual notice of some right or title in conflict with that one is about to purchase, it is one's duty to make the inquiry; and, if one does not make it, he is guilty of bad faith or negligence to such extent that the law will presume that one made it, and will charge one with the actual notice one would have received if one had made it. Commodity Credit Corp. v. Wells, 188 Ga. 287, 3 S.E.2d 642 (1939).
The 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 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. Where 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 two contracting parties deal at arms length with one another, and a written instrument is entered into and signed, and there is no evidence of artifice or fraud, and each party had ample opportunity to inform oneself as to the amounts claimed due, and a party negligently omitted to take such precautions as would reasonably serve to protect oneself, the defense of mistake of fact, if there is one - is obviously caused by the party's own neglect and is not available as a defense. Berry v. Atlas Metals, Inc., 152 Ga. App. 437, 263 S.E.2d 179 (1979).
Company with knowledge of deficiency of employee.
- Once a cab company had knowledge that the diagnosis of a physician showed a cab operator-employee was subject to recurring loss of consciousness which rendered it dangerous for the operator to drive, mere failure of the cab company to ascertain whether or not the operator had made a recovery would fall under the head of "negligent ignorance" which would be insufficient to relieve the company from liability for the unfortunate consequences following a seizure while the defendant was operating the taxicab. Jackson v. Co-op Cab Co., 102 Ga. App. 688, 117 S.E.2d 627 (1960).
Negligence in not discovering defect in title.
- Notice which would charge a purchaser of personal property with negligence in not discovering a defect in the vendor's title, which the vendor impliedly warranted in the sale, is not the constructive notice derived from the record in the clerk's office as required by law of instruments affecting the title to property, before a purchaser can be charged with negligence in failing to discover a defect in the vendor's title to the property sold, the purchaser must have had actual notice of the defect, or notice of a fact sufficient to put the purchaser upon inquiry as to the state of the title to the property. Perrin v. Reardon, 44 Ga. App. 823, 163 S.E. 300 (1932).
The failure of a petitioner to know the content defining the coverage of its insurance contract or to compare the facts and circumstances surrounding the injury to ascertain if it was covered thereby, and its failure to inquire of the employer or the industrial board (Board of Worker's Compensation) as to the existence of an insurance contract with another insurance carrier that covered the injury, amounted to negligence on the part of the petitioner, and would not constitute such a mistake of fact as would render the agreement and the payments thereunder involuntary and, therefore, a basis for subrogation. Glens Falls Indem. Co. v. Liberty Mut. Ins. Co., 202 Ga. 752, 44 S.E.2d 543 (1947).
Subrogation for voluntary payments is not allowed. Subrogation will be allowed, (1) when there are existing circumstances which in equity amount to an implied agreement for subrogation; or (2) when there is an agreement with either the debtor or the creditor whereby one making the payment will be subrogated to the rights and remedies of the original creditor. Glens Falls Indem. Co. v. Liberty Mut. Ins. Co., 202 Ga. App. 752, 44 S.E.2d 543 (1947).
One failing to inform oneself, but having equal opportunity of learning the truth, must suffer the consequences of one's neglect. Rustin Stamp & Coin Shop, Inc. v. Ray Bros. Roofing & Sheet Metal Co., 175 Ga. App. 30, 332 S.E.2d 341 (1985).
Negligence of purchaser of real estate.
- When the purchaser was under constructive notice as to the legal description of one's own deed, which incorporated the recorded plat by reference, and as to the ownership of the lot one believed one was buying but that was owned by another, one's failure to conduct a title examination was the sole proximate cause of injuries and one's negligence action was barred. Reidling v. Holcomb, 225 Ga. App. 229, 483 S.E.2d 624 (1997).
RESEARCH REFERENCES
Am. Jur. 2d.
- 27 Am. Jur. 2d, Equity, §§ 145, 167.
C.J.S.- 37 C.J.S., Fraud, § 28 et seq.
ALR.
- Possession of land by cotenant after acquisition of interest of another cotenant as notice to subsequent purchaser from or creditor of latter, 162 A.L.R. 209.
What constitutes notice to subsequent purchaser of real property of option to purchase contained in unrecorded lease, 17 A.L.R.2d 331.
Right to reformation of contract or instrument as affected by intervening rights of third persons, 79 A.L.R.2d 1180.
Right of vendee under executory land contract to lien for amount paid on purchase price as against subsequent creditors of or purchasers from vendor, 82 A.L.R.3d 1040.