(Laws 1847, Cobb's 1851 Digest, p. 517; Laws 1850, Cobb's 1851 Digest, p. 518; Code 1863, § 3581; Ga. L. 1868, p. 16, § 1; Code 1868, § 3604; Code 1873, § 3654; Ga. L. 1877, p. 21, § 1; Code 1882, § 3654; Ga. L. 1894, p. 100, §§ 2, 3; Civil Code 1895, §§ 5433, 5434; Civil Code 1910, §§ 6038, 6039; Code 1933, §§ 39-201, 39-202.)
Law reviews.- For article, "Remedies of Judgment Creditor Against Land Conveyed by Security Deed," see 8 Ga. B.J. 61 (1945). For note discussing procedures required to effect a levy of execution, see 12 Ga. L. Rev. 814 (1978).
JUDICIAL DECISIONS
This section was intended to prescribe remedy for judgment creditors in cases where the legal title to property of which the debtor is otherwise the owner has been reserved or conveyed to secure debt, and for this reason is not subject to levy. Cook v. Securities Inv. Co., 184 Ga. 544, 192 S.E. 179 (1937).
This section provides remedy for judgment creditor when land is conveyed by a deed to secure a debt, and the debtor has no other property except the debtor's equity in the land. The remedy of another creditor who subsequently obtains a judgment against the debtor is to redeem the land or otherwise proceed according to this section. Cook v. Securities Inv. Co., 184 Ga. 544, 192 S.E. 179 (1937).
This section relates to payment of secured debt by holder of judgment (a stranger to the security deed) against the grantor before the land can be subjected to the judgment last referred to. Coley v. Altamaha Fertilizer Co., 147 Ga. 150, 93 S.E. 90 (1917).
Judgment holder levying against defendant with only equitable interest.
- This section applies when the holder of the judgment levies against the defendant with only an equitable interest in the property. Gamble v. Pilcher, 242 Ga. 556, 250 S.E.2d 416 (1978).
This section has been applied to attachment cases before judgment. Jones v. Andrews, 89 Ga. App. 734, 81 S.E.2d 304, aff'd, 210 Ga. 706, 82 S.E.2d 503 (1954).
O.C.G.A. § 9-13-60 had no application when the defendant had unencumbered legal title to a one-half undivided interest in a tenancy in common to the 5.211 acres sought to be levied upon by the sheriff since the statute applies only to defendants possessed of only equitable interest in the property. Glover v. Ware, 236 Ga. App. 40, 510 S.E.2d 895 (1999).
Statutory conditions mandatory.
- Right to redeem and subject property to execution must be exercised upon statutory conditions as imposed in this section. Dedge v. Bennett, 138 Ga. 787, 76 S.E. 52 (1912).
Only leviable interest in property is legal title in defendant in fieri facias.
- Levying on anything short of a legal title in the defendant in fi. fa., barring only some fatal defect in the claimant's case, is a nullity. Manchester Motors, Inc. v. F & M Bank, 91 Ga. App. 811, 87 S.E.2d 342 (1955).
Security deed passes legal title to grantee-creditor; thus, leaving no leviable interest in the property in the grantors. Dean v. Andrews, 236 Ga. 643, 225 S.E.2d 38 (1976).
Security deed grantor's leviable interest in land.
- Grantor in security deed has no leviable interest in land thereby conveyed until judgment creditor redeems the land by payment to the grantee of the full amount of the secured debt. Shumate v. McLendon, 120 Ga. 396, 48 S.E. 10 (1904); Virginia-Carolina Chem. Co. v. Williams, 146 Ga. 482, 91 S.E. 543 (1917); First Nat'l Bank v. McFarlin, 146 Ga. 717, 92 S.E. 69 (1917); Miles v. Waters, 47 Ga. App. 25, 169 S.E. 783 (1933).
Priority is not a relevant issue in determining compliance with O.C.G.A. § 9-13-60. Harris v. Pullen (In re Pullen), 414 Bankr. 871 (Bankr. N.D. Ga. 2009).
Levy improper until secured debt redeemed.
- Under this section, the property at the time of the levy was not subject to levy and sale by the plaintiff in execution until the plaintiff paid off the note in which title to the property had been previously reserved. Black v. Gate City Coffin Co., 115 Ga. 15, 41 S.E. 259 (1902); R.L. Deariso & Co. v. Lawrence, 3 Ga. App. 580, 60 S.E. 330 (1908).
Judgment creditor cannot enforce the creditor's judgment by levy and sale of the property embraced in the security deed without redemption. Ordinarily, the creditor must first pay in full the secured debt, procure the vendee in the security deed to reconvey the property thereby conveyed to the vendor, have the deed of reconveyance recorded, and then proceed to levy and sell. Kidd v. Kidd, 158 Ga. 546, 124 S.E. 45 (1924).
Judgment creditor cannot levy an execution on land conveyed by a prior security deed, without first redeeming the land and proceeding otherwise as required by this section. Moncrief Furnace Co. v. Northwest Atlanta Bank, 193 Ga. 440, 19 S.E.2d 155 (1942); Perry v. Heflin, 202 Ga. 143, 42 S.E.2d 378 (1947).
When the defendant in execution does not hold legal title to property but has only an equity therein, an execution may not be levied against such equity until after payment or tender of any amounts owing to the vendor under the retention title contract. Pethel v. Liberal Fin. Co., 86 Ga. App. 773, 72 S.E.2d 563 (1952).
In order for a creditor to have an execution levied upon property covered by a valid bill of sale to secure debt, such creditor must first redeem the property by paying the debt, and a levy on the property covered by the bill of sale without compliance with such provision is void. Jones v. Andrews, 210 Ga. 706, 82 S.E.2d 503 (1954); Manchester Motors, Inc. v. F & M Bank, 91 Ga. App. 811, 87 S.E.2d 342 (1955).
Levy made before deed of reconveyance is void.
- National Bank v. Danforth, 80 Ga. 55, 7 S.E. 546 (1887); McCalla v. American Freehold Land Mtg. Co., 90 Ga. 113, 15 S.E. 687 (1892); Rogers v. Smith, 98 Ga. 788, 25 S.E. 753 (1896); Shumate v. McLendon, 120 Ga. 396, 48 S.E. 10 (1904); Dedge v. Bennett, 138 Ga. 787, 76 S.E. 52 (1912); Virginia-Carolina Chem. Co. v. Williams, 146 Ga. 482, 91 S.E. 543 (1917); Bank of La Grange v. Rutland, 27 Ga. App. 442, 108 S.E. 821 (1921), later appeal, 29 Ga. App. 478, 116 S.E. 49 (1923); Kidd v. Kidd, 158 Ga. 546, 124 S.E. 45 (1924); Citizens Mercantile Co. v. Easom, 158 Ga. 604, 123 S.E. 883 (1924).
When a judgment creditor paid off a debtors' security deed, a levy and sale of the debtor husband's one-half undivided interest in the property was void because the property was not reconveyed to the husband since, upon paying off the first deed, the creditor did not obtain a cancellation of the deed, and did not, after obtaining the assignment from the mortgage services company, execute a quitclaim for levy and sale. Harris v. Pullen (In re Pullen), 414 Bankr. 871 (Bankr. N.D. Ga. 2009).
Levy properly dismissed when requirements of section not met.
- When debt due under conditional-sale contract which took precedence over attachment levy had not been paid, and no tender thereof had been made by the plaintiff in attachment, it was not error to direct a verdict dismissing the levy on the ground that there had been no compliance with this section. Jones v. Andrews, 89 Ga. App. 734, 81 S.E.2d 304, aff'd, 210 Ga. 706, 82 S.E.2d 503 (1954).
When judgment creditor must satisfy indebtedness on property.
- Judgment creditor must satisfy any indebtedness on property in which the judgment debtor has an equitable interest prior to levy and sale; except when the existing indebtedness on the property is assumable and there is a wide disparity between the interest rate payable on such indebtedness and the interest rate at which any subsequent sale of the property would have to be financed. Hampton v. Gwinnett Bank & Trust Co., 251 Ga. 181, 304 S.E.2d 63 (1983).
To collect on a judgment against a person with only an equitable interest in property, a creditor must satisfy any outstanding debt on the property prior to a levy and sale. Equity will not create an exception to this general rule unless peculiar facts are shown that make the legal remedy inadequate. Dime Savs. Bank v. Sandy Springs Assocs., 261 Ga. 485, 405 S.E.2d 491 (1991).
Requirements of section not relaxed by equity absent good cause.
- Equity will not aid a judgment creditor in subjecting to the creditor's lien the property conveyed by security deed so as to authorize a relaxation of the general rule of this section, unless peculiar facts are shown, involving established equitable principles, such as would render the remedy at law under the statute inadequate, and would authorize a grant of the equitable relief prayed. Moncrief Furnace Co. v. Northwest Atlanta Bank, 193 Ga. 440, 19 S.E.2d 155 (1942); Perry v. Heflin, 202 Ga. 143, 42 S.E.2d 378 (1947).
Financial inability of judgment creditor to purchase secured debt cause for equitable relief.
- Financial inability of the judgment creditor to pay an outstanding and prior lien created by a security deed, and that the judgment debtor has no other property subject to levy and sale, are such peculiar facts as will authorize a relaxation of the general rule and the granting of equitable relief. Perry v. Heflin, 202 Ga. 143, 42 S.E.2d 378 (1947).
Substantial loss to creditor by redemption also cause.
- When a debt secured by a deed to secure the debt is interest bearing and not due, and a redemption under this section will cause the judgment creditor to lose a substantial sum approximating the amount of the unearned interest, the debtor having no other property from which to satisfy the judgment, a subsequent judgment creditor may proceed in equity for the appointment of a receiver for the purpose of selling the property subject to the principal of the debt and accrued interest. Cook v. Securities Inv. Co., 184 Ga. 544, 192 S.E. 179 (1937).
When holder of judgment pays debt secured by deed, it is duty of grantee to convey property embraced therein to the defendant in fieri facias; and when such conveyance is made and recorded, such property may be levied upon and sold as the property of the defendant. Carlton v. Reeves, 157 Ga. 602, 122 S.E. 320 (1924).
Full payment of secured debt by grantor revests title without reconveyance.
- Payment of a debt secured by deed to land revests in the grantor of such deed such interest and title therein as can be levied upon under an execution issuing upon a judgment junior in date to such deed, without a reconveyance of the land to the grantor, as required in this section, and, in case of cancellation, without the record of the cancellation of security deed. Citizens Mercantile Co. v. Easom, 158 Ga. 604, 123 S.E. 883 (1924).
Sale prevented if defendant tenders debt and costs to judgment creditor.
- When a plaintiff holding a fieri facias as transferee desires to levy it upon land, if the defendant in fi. fa. then tenders the plaintiff the full amount of the principal, interest, and costs due on the fi. fa., it is the plaintiff's duty to accept the payment; and if the plaintiff declines to accept such tender, and undertakes to have the property sold, injunction will lie to prevent the sale. Flemister Grocery Co. v. Burtz, 147 Ga. 416, 94 S.E. 229 (1917).
Security deed must be satisfied before materialman's lien enforced.
- After a plaintiff materialman has obtained a lien against the property and a judgment against the contractor who used the materials, and the judgment has not been satisfied, that plaintiff is entitled to obtain a judgment foreclosing the lien, but cannot enforce the lien by levy and sale until any prior security deed is satisfied. Bowen v. Kicklighter, 124 Ga. App. 82, 183 S.E.2d 10 (1971).
If a materialman who has obtained a lien against the property and a judgment against the contractor properly tenders the amount due on a prior security deed to the holder of that deed, the holder is bound to accept it, cancel the security deed, and allow the materialman to proceed under its foreclosure. Bowen v. Kicklighter, 124 Ga. App. 82, 183 S.E.2d 10 (1971).
Interest of obligee in bond for title is not subject to levy without first tendering amount due upon purchase money. Shumate v. McLendon, 120 Ga. 396, 48 S.E. 10 (1904); Burkhalter v. Durden, 122 Ga. 427, 50 S.E. 144 (1905); Protestant Episcopal Church v. Lowe Co., 131 Ga. 666, 63 S.E. 136 (1908).
Conveyance by executors of deceased partner sufficient.
- When the executors of a deceased partner acquire the whole interest in a promissory note payable to the partnership for land for which the partnerships had executed a bond for title, and if the executors then renew the note and execute a bond for title in their own name, the executors may make the conveyance to the debtor under the provisions of this section, irrespective of the joinder of the remaining partners. Blalock v. Jackson, 94 Ga. 469, 20 S.E. 346 (1894).
Rights of debtor's trustee in bankruptcy.
- One holding land under bond for title has no leviable interest therein; but a judgment creditor nevertheless has a lien upon the creditor's interest which may be enforced as provided by this section, and the debtor's trustee in bankruptcy, having the rights of a judgment creditor, has a lien which takes precedence over an unrecorded assignment of the bond. Fuller v. Atlanta Nat'l Bank, 254 F. 278 (5th Cir. 1918), cert. denied, 249 U.S. 599, 39 S. Ct. 257, 63 L. Ed. 796 (1919).
Cited in Jordan v. Central City Loan & Trust Ass'n, 108 Ga. 495, 34 S.E. 132 (1899); Wilkins, Neely & Jones v. Gibson, 113 Ga. 31, 38 S.E. 374 (1901); Black v. Gate City Coffin Co., 115 Ga. 15, 41 S.E. 259 (1902); National Bank v. Ellis, 148 Ga. 775, 98 S.E. 469 (1919); Sloan v. Loftis, 157 Ga. 93, 120 S.E. 781 (1923); Hiers v. Exum, 158 Ga. 19, 122 S.E. 784 (1924); Carnes v. American Agric. Chem. Co., 158 Ga. 188, 123 S.E. 18 (1924); Kidd v. Kidd, 158 Ga. 546, 124 S.E. 45 (1924); Miller v. First Nat'l Bank, 35 Ga. App. 334, 132 S.E. 783 (1926); Duke v. Ayers, 163 Ga. 444, 136 S.E. 410 (1927); Loftis v. Alexander, 181 Ga. 358, 182 S.E. 2 (1935); Tanner v. Wilson, 183 Ga. App. 53, 187 S.E. 625 (1936); Tanner v. Wilson, 184 Ga. 628, 192 S.E. 425 (1937); Campbell v. Gormley, 184 Ga. 647, 192 S.E. 430 (1937); S.T. & W.A. Dewees Co. v. Paul B. Carter & Co., 190 Ga. 68, 8 S.E.2d 376 (1940); Bull v. Johnson, 63 Ga. App. 750, 12 S.E.2d 96 (1940); Shedden v. National Florence Crittenton Mission, 191 Ga. 428, 12 S.E.2d 618 (1940); Dwyer v. Jones, 201 Ga. 259, 39 S.E.2d 313 (1946); Pethel v. Liberal Fin. Co., 86 Ga. App. 773, 72 S.E.2d 563 (1952); Jones v. Andrews, 89 Ga. App. 734, 81 S.E.2d 304 (1954); Bell v. Allied Fin. Co., 215 Ga. 631, 112 S.E.2d 609 (1960); Milam v. Adams, 101 Ga. App. 880, 115 S.E.2d 252 (1960); Dixon v. GMAC, 105 Ga. App. 413, 124 S.E.2d 660 (1962); Southern Cem. Consultants, Inc. v. Peachtree Mem. Park, 218 Ga. 389, 128 S.E.2d 200 (1962); Stephens v. Stephens, 220 Ga. 22, 136 S.E.2d 726 (1964); Mack Trucks, Inc. v. Ryder Truck Rental, Inc., 110 Ga. App. 68, 137 S.E.2d 718 (1964); Willingham v. Lee, 124 Ga. App. 641, 185 S.E.2d 553 (1971); Mason v. Fisher, 143 Ga. App. 573, 239 S.E.2d 226 (1977); Bloom v. Camp, 336 Ga. App. 891, 785 S.E.2d 573 (2016).
OPINIONS OF THE ATTORNEY GENERAL
Tax levy.
- O.C.G.A. § 48-2-55(c), pertaining to tax levies, authorizes the Commissioner of the Department of Revenue and the commissioner's agents to levy upon a delinquent taxpayer's equitable interest in real property encumbered by a deed to secure debt, without first satisfying the requirements of O.C.G.A. § 9-13-60. 1990 Op. Att'y Gen. No. 90-19.
RESEARCH REFERENCES24A Am. Jur. Pleading and Practice Forms, Vendor and Purchaser, §§ 219, 226.
C.J.S.- 33 C.J.S., Executions, § 47.
ALR.
- Judgment as lien on judgment debtor's equitable interest in real property, 30 A.L.R. 504.
Interest of vendee under executory contract as subject to execution, judgment lien, or attachment, 1 A.L.R.2d 727.
Power of equity court to reach or to sequester, for seizure and sale, beneficial equitable interests in corporate stock shares, 42 A.L.R.2d 920.
Right of purchaser at execution sale, upon failure of title, to reimbursement or restitution from judgment creditor, 33 A.L.R.4th 1206.
ARTICLE 4 SATISFACTION OR DISCHARGE OF JUDGMENT AND EXECUTION
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.