(Laws 1799, Cobb's 1851 Digest, p. 509; Laws 1821, Cobb's 1851 Digest, p. 511; Code 1863, § 3575; Code 1868, § 3598; Ga. L. 1871-72, p. 49, § 1; Code 1873, § 3646; Code 1882, § 3646; Civil Code 1895, § 5455; Civil Code 1910, § 6060; Code 1933, § 39-1201; Ga. L. 1956, p. 701, § 1; Ga. L. 1990, p. 1731, § 1; Ga. L. 1993, p. 91, § 9.)
Law reviews.- For article, "Buying Distressed Commercial Real Estate: What are the Alternatives?," see 16 (No. 4) Ga. St. B.J. 18 (2010).
JUDICIAL DECISIONS
This section is constitutional, and a foreclosure pursuant to the statute does not violate procedural due process rights. National Community Bldrs., Inc. v. Citizens & S. Nat'l Bank, 232 Ga. 594, 207 S.E.2d 510 (1974).
Ordinarily, judicial sales are made at the courthouse and are for cash. Jones, Drumright & Co. v. Thacker & Co., 61 Ga. 329 (1878).
Sale not conducted at courthouse must be conducted at place designated in court order and advertisement since otherwise it would be easy to conceal the true place of sale and defraud persons seeking to bid. Warren Co. v. Little River Farms, Inc., 125 Ga. App. 332, 187 S.E.2d 568 (1972).
Beginning sale shortly before prescribed hour will not invalidate sale. Gower v. New England Mtg. Sec. Co., 152 Ga. 822, 111 S.E. 422 (1922).
Proviso in subsection (b) of this section was made for benefit of officers, and not a person who has contracted to deliver the property at the courthouse. King v. Castlen, 91 Ga. 488, 18 S.E. 313 (1893); Scruggs v. Bennett, 34 Ga. App. 131, 128 S.E. 703 (1925).
Officer must not lose control of property. O'Pry v. Kennedy, 86 Ga. 662, 12 S.E. 940 (1891); Johns v. Robinson, 119 Ga. 59, 45 S.E. 727 (1903).
As to machinery or other articles difficult to transport, there need be no carrying away in making levy. Champion Box Co. v. Manatee Crate Co., 75 F.2d 340 (5th Cir. 1935).
Sale voidable when statutory requirements not met.
- Sale at a place other than at the courthouse, and other than that designated in the judicial order and announced in the notice and advertisements, is such an irregularity as renders the sale voidable at the option of one who was thereby deprived of a bid. Warren Co. v. Little River Farms, Inc., 125 Ga. App. 332, 187 S.E.2d 568 (1972).
In absence of valid sale, execution debtor retains title to the property. Cargle v. Knox, 143 Ga. 597, 85 S.E. 764 (1915).
Sheriff in making sale is agent of and acts for defendant in fieri facias and the proceeds of a sheriff's sale belong to the defendant in fieri facias. Falls v. Fickling, 621 F.2d 1362 (5th Cir. 1980).
Sale on legal holiday not void.
- Sale of property in this state under the power of sale contained in a deed to secure debt is not void because the sale is had on a legal holiday. Miller Grading Contractors v. Georgia Fed. Sav. & Loan Ass'n, 247 Ga. 730, 279 S.E.2d 442 (1981).
Mortgagee may purchase mortgaged property at sale by the mortgagee under a power of sale in the mortgage, if by the terms of the mortgage the mortgagee is expressly authorized to do so. Miller Grading Contractors v. Georgia Fed. Sav. & Loan Ass'n, 247 Ga. 730, 279 S.E.2d 442 (1981).
Notice of sale by mortgage holder.
- In the absence of a specific provision to that effect, the holder of a mortgage or trust deed with power of sale is not required to give notice of the exercise of the power to a subsequent purchaser or encumbrancer; and the validity of the sale is not affected by the fact that such notice is not given. Miller Grading Contractors v. Georgia Fed. Sav. & Loan Ass'n, 247 Ga. 730, 279 S.E.2d 442 (1981).
Upon the failure of a purchaser to comply with a high bid, the property sold at public auction may not be conveyed to the next highest bidder without complying with the terms of O.C.G.A. §§ 9-13-161 and44-14-162. Little v. Fleet Fin., 224 Ga. App. 498, 481 S.E.2d 552 (1997).
Cited in Mathews v. Starr, 68 Ga. 521 (1882); Williams v. Moore & Watkins, 68 Ga. 585 (1882); Garrett v. Crawford, 128 Ga. 519, 57 S.E. 792 (1907); County of DeKalb v. City of Atlanta, 132 Ga. 727, 65 S.E. 72 (1909); Carrington v. Citizens Bank, 140 Ga. 798, 80 S.E. 12 (1913); Bush v. Growers' Fin. Corp., 176 Ga. 99, 167 S.E. 105 (1932); Zugar v. Scarbrough, 186 Ga. 310, 197 S.E. 854 (1938); Citizens Bank v. Lamar County, 187 Ga. 123, 200 S.E. 257 (1938); Gooch v. Citizens & S. Nat'l Bank, 196 Ga. 322, 26 S.E.2d 727 (1943); Sellers v. Johnson, 207 Ga. 644, 63 S.E.2d 904 (1951); Copeland v. Beckham, 87 Ga. App. 34, 73 S.E.2d 34 (1952); Small Equip. Co. v. Walker, 126 Ga. App. 827, 192 S.E.2d 167 (1972); Law v. USDA, 366 F. Supp. 1233 (N.D. Ga. 1973); Roberts v. Cameron-Brown Co., 410 F. Supp. 988 (S.D. Ga. 1975); Wilson v. Citizens Bank, 143 Ga. App. 402, 238 S.E.2d 754 (1977); Sanders v. State, 151 Ga. App. 590, 260 S.E.2d 504 (1979); Geibank Indus. Bank v. Martin, 97 Bankr. 1013 (Bankr. N.D. Ga. 1989).
RESEARCH REFERENCES
Am. Jur. 2d.
- 47 Am. Jur. 2d, Judicial Sales, §§ 37, 39, 40, 41.
C.J.S.- 50A C.J.S., Judicial Sales, § 30 et seq.
ALR.
- Effect of receipt of advance bid before confirmation upon the confirmation of judicial sale, 11 A.L.R. 399; 152 A.L.R. 530.
Judicial, execution, or tax sale on election day, holiday, or Sunday, 58 A.L.R. 1273.
Presence of chattels at place of sale as a condition of a sale by "public auction," required by statute or ordinance, or of a judicial or execution sale, 69 A.L.R. 1194.
When "sale" deemed to have taken place for purposes of statute of limitations which fixes commencement of period at time of foreclosure sale or other judicial sale, 101 A.L.R. 1348.
Construction, application, and effect of statutory provision requiring seizure and possession of property before sale for delinquent taxes, 105 A.L.R. 635.
Validity of judicial, execution, tax, or other public sale as affected by the particular point in courthouse or other place identified by notice, or designated by statute or by mortgage or trust deed, at which the sale was made, or by indefiniteness of notice as regards that point, 120 A.L.R. 660.