Transfer of Execution Upon Payment; Status of Transferee; Recording Necessary to Preserve Lien; Exception for Tax Executions

  1. Law
  2. Georgia Code
  3. Civil Practice
  4. Executions and Judicial Sales
  5. Parties in Execution
  6. Transfer of Execution Upon Payment; Status of Transferee; Recording Necessary to Preserve Lien; Exception for Tax Executions

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  1. Except as otherwise provided for in subsection (b) of this Code section, whenever any person other than the person against whom the same has issued pays any execution, issued without the judgment of a court, under any law, the officer whose duty it is to enforce the execution, upon the request of the party paying the same, shall transfer the execution to the party. The transferee shall have the same rights as to enforcing the execution and priority of payment as might have been exercised or claimed before the transfer, provided that the transferee shall have the execution entered on the general execution docket of the superior court of the county in which the same was issued and, if the person against whom the same was issued resides in a different county, also in the county of such person's residence within 30 days from the transfer; in default thereof the execution shall lose its lien upon any property which has been transferred bona fide and for a valuable consideration before the recordation and without notice of the existence of the execution.
  2. This Code section shall not be applicable to tax executions. Tax executions shall be governed exclusively by Chapters 3 and 4 of Title 48.

(Ga. L. 1872, p. 75, § 1; Code 1873, § 891a; Ga. L. 1875, p. 119, § 1; Code 1882, § 891a; Ga. L. 1894, p. 37, § 1; Civil Code 1895, § 888; Civil Code 1910, § 1145; Code 1933, § 39-403; Ga. L. 2006, p. 770, § 1/SB 585.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2006, a comma was deleted following "execution" in the first sentence of subsection (a).

Editor's notes.

- Ga. L. 2006, p. 770, § 8/SB 585, not codified by the General Assembly, provides: "The provisions of this Act shall apply to all executions transferred on or after July 1, 2006. Executions transferred prior to July 1, 2006, shall not be affected by this Act."

Law reviews.

- For annual survey of real property law, see 58 Mercer L. Rev. 367 (2006).

JUDICIAL DECISIONS

Words "any person," as used in this section, are sufficient to include purchaser at judicial sale had in pursuance of a judgment in favor of such purchaser on promissory notes executed by the taxpayer in the purchase of the land upon which the taxes subsequently accrued. Graves v. Walker, 182 Ga. 644, 186 S.E. 820 (1936).

Main purpose and policy of this section is to protect purchasers and others who might become interested after the date of the transfer. National Bank v. Danforth, 80 Ga. 55, 7 S.E. 546 (1887).

Terms of this section must be strictly complied with. Clarke v. Douglass, 86 Ga. 125, 12 S.E. 209 (1890).

Who may transfer.

- Officer whose duty it is to enforce an execution issued without the judgment of a court has authority, as provided by this section, without the consent of the plaintiff in execution or the transferee thereof, to transfer the execution to any person paying the amount of the execution and requesting a transfer. Ledbetter Bros. v. Farrar, 51 Ga. App. 742, 181 S.E. 591 (1935).

Failure to record does not release lien as to defendant.

- Though the execution was not entered on the docket in the office of the clerk of the superior court within 30 days, the execution did not thereby lose its lien as against the defendant. Fuller v. Dowdell, 85 Ga. 463, 11 S.E. 773 (1890).

Insufficient entry on execution docket.

- Entry not disclosing the names of the plaintiffs, but giving the transferee as plaintiff, and not indicating that the execution is for taxes, is insufficient to uphold the lien as against the defendant. National Bank v. Danforth, 80 Ga. 55, 7 S.E. 546 (1887).

Cited in Ledbetter Bros. v. Farrar, 51 Ga. App. 742, 181 S.E. 591 (1935); Moore v. Heard, 213 Ga. 711, 101 S.E.2d 92 (1957).

RESEARCH REFERENCES

C.J.S.

- 33 C.J.S., Executions, §§ 132, 133.

ARTICLE 3 PROPERTY AGAINST WHICH EXECUTION LEVIED

Cross references.

- Exemption of school property from levy and sale, § 20-2-540.

Homestead exemptions, T. 44, C. 13.

RESEARCH REFERENCES

ALR.

- Judgment lien or levy of execution on one joint tenant's share or interest as severing joint tenancy, 51 A.L.R.4th 906.


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