Any mortgagor who has paid off his or her mortgage may present the paid mortgage to the clerk of the superior court of the county or counties in which the mortgage instrument is recorded, together with the order of the mortgagee or transferee directing that the mortgage be canceled. After payment of the fee authorized by law, the clerk shall index and record, in the same manner as the original mortgage instrument is recorded, the canceled and satisfied mortgage instrument or such portion thereof as bears the order of the mortgagee or transferee directing that the mortgage be canceled, together with any order of the mortgagee or transferee directing that the mortgage be canceled. The clerk shall show on the index of the cancellation and on the cancellation document the deed book and page number where the original mortgage instrument is recorded. The clerk shall manually or through electronic means record across the face of the mortgage instrument the words "satisfied" and "canceled" and the date of the entry and shall sign his or her name thereto officially. The clerk shall also manually or electronically make a notation on the record of the mortgage to indicate where the order of the cancellation is recorded.
(Ga. L. 1884-85, p. 129, §§ 1, 2; Civil Code 1895, §§ 2737, 2738; Civil Code 1910, §§ 3270, 3271; Code 1933, § 67-117; Ga. L. 1963, p. 276, § 1; Ga. L. 1989, p. 498, § 1; Ga. L. 2012, p. 173, § 1-36/HB 665.)
The 2012 amendment, effective July 1, 2012, inserted "or her" in the first sentence; in the fourth sentence, inserted "manually or through electronic means" near the beginning, and inserted "or her" near the end; and inserted "manually or electronically" in the last sentence.
Editor's notes.- Ga. L. 1962, p. 156, § 1, provides that any provision of Code Sections 44-14-1, 44-14-2, 44-14-4, 44-14-7 through 44-14-12, 44-14-100, and 44-14-160, and Arts. 2 and 3, Ch. 14, of this title which conflicts with T. 11 shall yield to and be superseded by T. 11. See Code Section 11-10-103.
JUDICIAL DECISIONS
Cancellation need not be under seal.
- There is no requirement that a cancellation of a mortgage should be under seal. Sims v. Scheussler, 5 Ga. App. 850, 64 S.E. 99 (1909).
Priority of new security taken by mortgagee who surrenders original note and mortgage.
- Where the mortgagee takes new security and enters upon the note and mortgage the word "satisfied," and surrenders them to the mortgagor, and the mortgage is duly canceled on the record, this amounts to an extinguishment of the mortgage, and the new security is inferior to an intervening mortgage on the same property, of which the first mortgagee had notice at the time the mortgagee canceled the mortgage and accepted the new security. Farkas v. Third Nat'l Bank, 133 Ga. 755, 66 S.E. 926, 26 L.R.A. (n.s.) 496 (1910).
Cancellation under mistake of fact, see Woodside v. Lippold, 113 Ga. 877, 39 S.E. 400, 84 Am. St. R. 267 (1901).
Good faith purchase at sale under power without notice of satisfaction of debt.
- While a power of sale in a mortgage is extinguished by the payment of the debt the mortgage was given to secure, if the mortgagor fails to have the satisfaction of the debt entered of record and a sale is thereafter had under the power, one who purchases in good faith and for value at such sale, without notice of the fact of the satisfaction of the debt, will be protected in title. Garrett v. Crawford, 128 Ga. 519, 57 S.E. 792, 119 Am. St. R. 398, 11 Ann. Cas. 167 (1907).
Effect of forged entry of satisfaction.
- Where the mortgagor fraudulently substitutes a copy for the original, and forges an entry of satisfaction thereon and has it cancelled of record, it does not affect the mortgagee, even as to a bona fide purchaser. Luther v. Clay, 100 Ga. 236, 28 S.E. 46, 39 L.R.A. 95 (1897).
Liability of clerk for recording forged cancellation order.
- When a mortgagor presents to a clerk an original mortgage of record and an order to the clerk, purporting to have been signed by the mortgagee, to cancel such mortgage on the record, and the clerk has no knowledge of the invalidity of the order, nor any reason to suspect the same, the act of recording the order does not render the clerk and the sureties on the clerk's official bond liable to a person injured by such entry, notwithstanding the order was forged. Luther v. Banks, 111 Ga. 374, 36 S.E. 826 (1900).
Instrument containing no defeasance clause is a deed or bill of sale to secure debt.
- A written instrument which by its terms passes title from the vendor to the vendee as security for a debt, and which contains no defeasance clause, is a deed or bill of sale to secure a debt, and is not a mortgage. The title conveyed thereunder does not automatically revert to the vendor upon the payment of the debt, but continues thereafter in the vendee, and is not divested until the performance of some act, as a reconveyance from the vendee to the vendor, or the cancellation and surrender of the instrument by the vendee as required by statute. Grady v. T.I. Harris, Inc., 41 Ga. App. 111, 151 S.E. 829 (1930).
Cited in Ellis v. Ellis, 161 Ga. 360, 130 S.E. 681 (1925); Blumenfeld v. Citizens Bank & Trust Co., 168 Ga. 327, 147 S.E. 581 (1929); Investor's Syndicate v. Thompson, 172 Ga. 203, 158 S.E. 20 (1931); Bank of LaFayette v. Giles, 208 Ga. 674, 69 S.E.2d 78 (1952); Stearns Bank, N.A. v. Mullins, 333 Ga. App. 369, 776 S.E.2d 485 (2015), cert. denied sub nom. Hawkins v. Stearns Bank, N.A., No. S15C1827, 2015 Ga. LEXIS 855 (Ga. 2015), cert. denied, No. S15C1821, 2015 Ga. LEXIS 868 (Ga. 2015).
OPINIONS OF THE ATTORNEY GENERAL
Recordation requirements.
- When a paid mortgage or security deed is filed with an order of cancellation upon it, clerks of superior court may record the canceled instrument or only the part which bears the order; the part recorded should be sufficient to identify the transaction; clerks should index cancellations of security instruments with the name of the borrower (mortgagor) in the "grantee" index, make all notations required by statute in the indices and on the recordings, and charge a fee of $3.50, unless the cancellation is by new deed, in which case the fee for recording a deed should also be charged. 1989 Op. Att'y Gen. U89-19.
Cancellation of security deeds and writs of execution from record, see 1972 Op. Att'y Gen. No. U72-79.