§ 44-2-11 A copy from the registry of any instrument conveying or affecting land in any county of this state which is recorded in the office of the clerk of the superior court of the county, if duly certified by the clerk, may be filed for record and recorded in the office of the clerk of the superior court of any other county where some of the land conveyed or affected by such instrument is located in the same manner and with the same force and effect for all purposes as if the certified copy were the original instrument, provided an affidavit is attached to the certified copy and recorded with it in which the affiant says that he owns an interest in property affected by the instrument, that the original instrument has been lost or destroyed, and that he truly believes that the original instrument was genuine. O.C.G.A. §44-2-12 When the record of any deed or other recorded instrument or the certificate of record is lost or destroyed, the clerk of the superior court may rerecord the instrument and the certificate of record. The rerecording shall be as valid as the original recording and shall take effect from the date of the original recording, provided the rerecording is within 12 months after the loss or destruction of the original recording. O.C.G.A. §44-2-18 If a deed is neither attested by nor acknowledged before one of the officers named in Code Section 44-2-15, it may be recorded upon the affidavit of a subscribing witness, which affidavit shall be made before any one of the officers named in Code Section 44-215 and shall testify to the execution of the deed and its attestation according to law. A substantial compliance with the requirements of this Code section shall be held sufficient in the absence of all suspicion of fraud. O.C.G.A. §44-2-29 Any plats or any blueprints, tracings, photostatic copies, or other copies of plats recorded prior to March 29, 1937, in the manner described in Code Section 44-2-26 are declared to have been duly recorded; and the reference in any deed, mortgage, or other instrument executed prior to March 29, 1937, to the boundaries, metes, courses, or distances of the real estate delineated or shown on any plat or on any blueprint, tracing, photostatic copy, or other copy of a plat recorded prior to March 29, 1937, in the manner described in Code Section 44-2-26 shall have the same effect as if the boundaries, metes, courses, or distances of the real estate were specifically set forth in the deed, mortgage, or other instrument. O.C.G.A. §44-2-40 This article shall be known and may be cited as "The Land Registration Law." O.C.G.A. §44-2-41 As used in this article, the term: (1) "Clerk" means the clerk of the superior court of the county where the land is located
and includes his lawful deputies and any person lawfully acting as clerk under the general laws or under this article. (2) "Court" means the superior court of the county where the land is located. (3) "Involuntary transaction" means all transmissions of registered land or of any interest therein other than those included in paragraph (6) of this Code section and all other rights or claims, judicial proceedings, liens, charges, or encumbrances not created directly by contract with the registered owner but arising by operation of law or of equitable principles or because of dower, the exercise of the right of eminent domain, levies on delinquent taxes, or any other like matters affecting registered land or any interest therein. (4) "Judge," "judge of the court," "judge of the superior court," "judge of the superior court of the county where the land is located" or words of similar purport mean any judge presiding in the superior court of the county where the land is located. While it is intended that as a usual matter the judge of the superior court of each circuit shall be the judge who shall act upon and sit in the various matters arising in that circuit with which the judges of such courts are charged under this article, as to such matters any judge of the superior court shall have jurisdiction to perform the functions of judge under this article. In the event the judge of the superior court of the circuit in which the transaction or matter arises is disqualified, absent from the circuit, ill, dead, or from any other cause cannot act in the matter, it shall be the duty of any other judge of the superior court to whom the matter is presented to act in the matter to the same extent as if the same arose in one of the counties of his own circuit. In any matter arising under this article, upon the request of the judge of the superior court of the circuit in which it arose, any judge of the superior court may act upon it as if it had arisen in his own circuit. (5) "Registered land" means any estate or interest in land which shall have been registered under this article. (6) "Voluntary transaction" means all contractual and other voluntary acts or dealings, except by will, by any registered owner of any estate or interest in land, with reference to such estate or interest and any right of homestead or exemption therein. O.C.G.A. § 44-2-77 While the cause is pending before the examiner of titles or at any time before final decree, the judge, or the examiner with the approval of the judge, may require the land to be surveyed by some competent surveyor and may order durable bounds to be set and a plat thereof to be filed among the papers of the suit. Before such survey is made, all adjoining landowners shall be given at least five days' notice. The petitioner or any adjoining owner dissatisfied with the survey may file a protest with the court within ten days from the time the plat is filed; and thereupon an issue shall be made up and tried as in case of protest to the return of land processioners. O.C.G.A. § 44-2-43 Any person who: (1) fraudulently obtains or attempts to obtain a decree of registration of title to any land or interest therein; (2) knowingly offers in evidence any forged or fraudulent document in the course of any proceedings with regard to
registered lands or any interest therein; (3) makes or utters any forged instrument of transfer or instrument of mortgage or any other paper, writing, or document used in connection with any of the proceedings required for the registration of lands or the notation of entries upon the register of titles; (4) steals or fraudulently conceals any owner's certificate, creditor's certificate, or other certificate of title provided for under this article; (5) fraudulently alters, changes, or mutilates any writing, instrument, document, record, registration, or register provided for under this article; (6) makes any false oath or affidavit with respect to any matter or thing provided for in this article; or (7) makes or knowingly uses any counterfeit of any certificate provided for by this article shall be guilty of a felony and shall be punished by imprisonment for not less than one nor more than ten years. O.C.G.A. § 44-2-44 Any clerk, deputy clerk, special clerk, or other person performing the duties of the office of clerk who: (1) fraudulently enters a decree of registration without authority of the court; (2) fraudulently registers any title; (3) fraudulently makes any notation or entry upon the title register; (4) fraudulently issues any certificate of title, creditor's certificate, or other instrument provided for by this article; or (5) knowingly, intentionally, and fraudulently does any act of omission or commission under color of his office in relation to the matters provided for by this article shall be guilty of a felony and shall be removed from office and be permanently disqualified from holding any public office and shall be punished by imprisonment for not less than one nor more than ten years. O.C.G.A. §44-2-46 Any examiner of title who knowingly and fraudulently makes any false report to the court as to any matter relating to any title which is sought to be registered under this article, as to any matter affecting the same, or as to any other matter referred to him under this article or who fraudulently conspires with any other person or persons to use this article in defrauding any other person or persons, firm, or corporation or who is guilty of any willful malpractice in his office shall be guilty of a felony and be punished by imprisonment for not less than one nor more than ten years. O.C.G.A. § 44-2-60 For the purpose of enabling all persons owning real estate within this state to have the title thereto settled and registered as prescribed by this article, the superior court of the county in which the land is located shall have exclusive original jurisdiction of all petitions and proceedings had thereupon. O.C.G.A. §44-2-61 The proceedings under any petition for the registration of land and all proceedings in the court in relation to registered land shall be proceedings in rem against the land; and the decree of the court shall operate directly on the land and shall vest and establish title
thereto in accordance with this article upon all persons who are parties to said proceedings, whether by name or under the general designation of "whom it may concern." O.C.G.A. § 44-2-64 The petition and amendments thereto shall be signed and sworn to by each petitioner, or, in the case of a corporation, by some officer thereof, or, in the case of a person under disability, by the person filing the petition. It shall contain a full description of the land, its valuation, and its last assessment for county taxation; shall show when, how, and from whom it was acquired, a description of the title by which he claims the land, and an abstract of title; shall state whether or not it is occupied; and shall give an account of all known liens, interests, and claims, adverse or otherwise, vested or contingent. Full names and addresses, if known, of all persons who may have any interest in the land, including adjoining owners and occupants, shall be given. The description of the land given in the petition shall be in terms which will identify the same fully and which will tend to describe the same as permanently as is reasonably practicable under all the circumstances. If the land is in a portion of the state in which land is divided into land districts and lot numbers by state survey, the petition shall state the number of the land district and the lot number or numbers in which the tract is located. Before passing a decree upon any petition for registration, the judge, on his own motion or upon the recommendation of the examiner, may require a fuller and more adequate description or one tending more permanently to identify the tract in question to be included in the petition by amendment; and if, in the discretion of the court, it shall be necessary, the judge may for that purpose require a survey of the premises to be made and the boundaries marked by permanent monuments. The acreage or other superficial contents of the tract shall be stated with approximate accuracy; and where reasonably practicable the court may require the metes and bounds to be stated. O.C.G.A. § 44-2-67 (a)(1) Upon the petition being filed in the office of the clerk of the superior court in the county where the land is located, the clerk shall issue a process directed to the sheriffs of this state and their lawful deputies requiring all of the defendants named in the petition and all other persons "whom it may concern" to show cause before the court on a named day not less than 40 nor more than 50 days from the date thereof why the prayers of the petition should not be granted and why the court should not proceed to judgment in such cause. The clerk shall make the necessary copies of the petition and process for service. (2) A copy of the petition and process shall be served in accordance with Code Section 911-4 upon each party who is named as a defendant in the original petition and who is a resident of this state, provided that such service shall be within 30 days from the time of issuance of process. Second originals and copies may be issued and served in the same manner provided for in Code Section 9-11-4. (3) The clerk of the superior court shall also cause to be published for four separate weeks in the newspaper in which the advertisements of sheriff's sales in the county are
advertised a notice addressed "to whom it may concern" and to each person named in the petition as a defendant who resides outside of the state or whose place of residence is unknown. The notice shall give notice of the filing of the petition by the petitioner and a description of the land which the petitioner seeks to register and shall warn such defendants to show cause why the petition should not be granted before the court on the date named in the process. (4) Wherever the petition discloses or it otherwise becomes disclosed to the court in the progress of the proceedings that any nonresident is interested, such nonresident shall also be notified by the clerk of the court mailing to him a copy of the petition and process by registered or certified mail or statutory overnight delivery to his post office address, if known, as the same may be disclosed to the court through the petition or other proceedings in the case. (5) The judge of the court may grant additional time for service or return of the process and may provide for service in cases not provided for in this subsection wherever the exigencies of justice may so require. (b) Notwithstanding subsection (a) of this Code section, instead of the clerk's issuing process and making copies of the petition and process and instead of service of the petition and process being made, it shall be sufficient for the clerk to prepare and cause to be issued and served as provided in subsection (a) of this Code section a summons substantially in the following language: "To (here list the defendants shown in the petition): Please take notice that (here name the plaintiff or plaintiffs) has filed in said court a petition seeking to register, under the provisions of the Land Registration Law, the following described lands (describe them). You are notified to show cause to the contrary, if any you have, before said court on or before the ______ day of ______________, ____. _______________ Clerk" However, if the petitioner so requests and if he delivers copies of the petition to the clerk, the clerk shall attach a copy of the process to the petition and cause the same to be served as provided in subsection (a) of this Code section. Wherever in this article a requirement is made for serving on any person a copy of the petition and process, it shall be sufficient in lieu thereof to serve a copy of the summons as provided for in this subsection. (c) Notwithstanding subsection (b) of this Code section, if any defendant named in the original petition shall through his counsel request in writing a copy of the petition from the applicant, the applicant shall provide the defendant with a copy of the petition, with all exhibits attached, within five days of the request. The time within which a defendant must file an answer or cross-action to the application shall be suspended from the date of his request for a copy of the petition until the date he receives the copy of the petition, with all exhibits attached, from the applicant.
(d) Guardians ad litem shall be appointed for infants and other persons under disability in proceedings under this article, as provided for in Title 9. O.C.G.A. §44-2-69 If the petition discloses that it involves the determination of any public right or interest of this state or of any county or municipality thereof, the process or notice, in order to affect the state, the county, or the municipality, shall be served: (1) In the case of the state, upon the Attorney General; (2) In the case of a county, upon the judge of the probate court or, if the judge of the probate court is disqualified, upon the clerk of the superior court; or (3) In the case of a municipality, upon the mayor of the municipality or, if there is no mayor or if the mayor is disqualified, upon a majority of the members of the council or other governing body of the municipality. O.C.G.A. § 44-2-72 (a) A notice similar to the notice published as provided in Code Section 44-2-67 shall be delivered by the clerk to the sheriff of the county or to one of his lawful deputies; and the sheriff or his lawful deputy shall, within 30 days from the date the petition is filed, post the same upon the land in some conspicuous place. If there is more than one tract of land, the clerk shall furnish enough notices to the sheriff or his deputy to allow the posting of a notice upon each tract of land included in the petition. (b) If the land contains one or more dwelling houses or one or more buildings used as a place of business, the sheriff shall conspicuously post upon each house or building the notice provided for in subsection (a) of this Code section; and he shall state this in his return to the court. (c) Within 30 days from the date the petition is filed, the sheriff shall go upon the land and ascertain the identities of the occupants of the land. He shall make an official return to the court stating the name and post office address of each person over 14 years of age actually occupying the premises. (d) After receiving the sheriff's return, the clerk shall send a copy of the petition and process by registered or certified mail or statutory overnight delivery to each person occupying the land or he may require the sheriff or his deputy to serve a copy of the petition and process upon such persons. The clerk shall make an entry if he has mailed the notices or, if the sheriff has made the service of process, the sheriff shall make the return (e) After the sheriff or his deputy has entered upon the land, posted the notices provided for in subsections (a) and (b) of this Code section, and made his return to the court as provided in subsection (c) of this Code section, the land shall be deemed to have been seized and brought into the custody of the court for the purposes of this article; and the court's jurisdiction in rem and quasi in rem shall attach thereto for purposes of land registration proceedings under this article. (f) The clerk shall attach to each owner's certificate of title a certified copy of the sheriff's return.
O.C.G.A. §44-2-74 If the report of the examiner discloses that persons other than those who have been notified are entitled to notice, a copy of the petition shall be served upon such persons in the same manner as other persons named as defendants in the petition are required to be served by this article; and, in addition to the copy of the petition, there shall be attached a notice from the clerk directed to such person informing him that he shall appear and show cause against the judgment being rendered in the case, if any, within ten days from the date of the service of the notice. However, nothing in this Code section shall be construed to require the giving of additional notice by publication other than the published notice provided for in this article to nonresidents or persons who, by reason of absence from the state or by reason of their whereabouts being unknown, cannot be found and served with process. O.C.G.A. §44-2-77 While the cause is pending before the examiner of titles or at any time before final decree, the judge, or the examiner with the approval of the judge, may require the land to be surveyed by some competent surveyor and may order durable bounds to be set and a plat thereof to be filed among the papers of the suit. Before such survey is made, all adjoining landowners shall be given at least five days' notice. The petitioner or any adjoining owner dissatisfied with the survey may file a protest with the court within ten days from the time the plat is filed; and thereupon an issue shall be made up and tried as in case of protest to the return of land processioners. O.C.G.A. §44-2-81 No decree shall be rendered by default and without the necessary facts being shown. O.C.G.A. §44-2-84 All judgments and decrees of the superior court or the judge thereof which are rendered under this article shall be subject to review by the Supreme Court. O.C.G.A. §44-2-100 The judge of the superior court of each judicial circuit shall appoint at least one auditor, who shall be known as the examiner, who shall discharge the duties provided for the examiner in this article but whose relation and accountability to the court shall be that of an auditor in the general practice existing in this state. The judge shall appoint as many examiners in the circuit as the public convenience may require in connection with the carrying out of this article; and the judge may, in any case, appoint a special examiner. Examiners shall hold office at the pleasure of the judge and shall be removable at any time with or without cause. Each examiner must be a competent attorney at law, be of good standing in his profession, and have at least three years' experience in the practice of law. Each examiner shall take and file in the office of the clerk of the superior court of the county of his residence, along with the order of his appointment, an oath or affidavit substantially in the form prescribed in Code Section 44-2-228.
O.C.G.A. §44-2-101 Upon the filing of a petition as provided in this article, the clerk shall at once notify the judge who shall refer the action to one of the general examiners or to a special examiner. It shall then become the duty of the examiner to make up a preliminary report containing an abstract of the title to the land from public records and all other evidence of a trustworthy nature that can reasonably be obtained by him, which abstract shall contain: (1) Extracts from the records and other matters referred to therein which are complete enough to enable the court to decide the questions involved; (2) A statement of the facts relating to the possession of the lands; and (3) The names and addresses, so far as the examiner is able to ascertain, of all persons interested in the land as well as all adjoining owners showing their several apparent or possible interests and indicating upon whom and in what manner process should be served or notices given in accordance with this article. The preliminary report of the examiner shall be filed in the office of the clerk of the superior court on or before the return day of the court as stated in the process unless the time for filing the report is extended by the court. The report shall be prima-facie evidence of the contents thereof. O.C.G.A. §44-2-102 As soon as practicable after the return day stated in the process, the examiner shall proceed to hear evidence and make up his final report to the court. However, if it has developed from the preliminary report filed by him that persons other than those named as defendants in the original petition are entitled to service or notice, the hearing shall not begin until after ten days from the date of the service of notice upon such persons. The examiner shall give notice of the time and place of the hearing to the petitioner and to persons who have filed any pleading in the case. O.C.G.A. §44-2-103 (a) At the time and place set for the hearing, the examiner shall, in like manner as other auditors, proceed with similar powers as to the compelling of the attendance of witnesses, the production of books and papers, and adjournment and recessing to hear all lawful evidence submitted. In addition he may make such independent examination of the title as he may deem necessary. (b) Within 15 days after the hearing has been concluded unless for good cause the time is extended by the judge, the examiner shall file with the clerk a report of his conclusions of law and of fact setting forth the state of the title; any liens or encumbrances thereon, by whom held, and the amounts due thereon; the abstract of title to the land; any other information affecting the validity of the title; and a brief or a stenographic report of the evidence taken by him. He shall mail notice of the filing of his report to each of the parties who have appeared in the case. Any of the parties to the proceeding may file exceptions to the conclusions of law or of fact or to the
general findings of the examiner within 20 days after such report is filed. The clerk shall thereupon notify the judge that the record is ready for his determination. (c) If the petitioner or any contestant of the petitioner's right shall demand a trial by jury upon any issue of fact arising upon exceptions to the examiner's report, the court shall cause the same to be referred to a jury either at the term of court which may then be in session or at the next term of the court or at any succeeding term of the court to which the case may be continued for good and lawful reasons. It shall be the duty of the judge to expedite the hearing of the case and not to continue it unless for good cause shown or upon the consent of all parties at interest. The issue or issues of fact shall be tried before the jury, in the event jury trial is requested, upon the evidence reported by the examiner except in cases where, under law, evidence other than that reported by an auditor may be submitted to the jury on exceptions to an auditor's report. Furthermore, in cases where the examiner has reported to the court findings of fact based on his personal examination, either party may introduce additional testimony as to such facts, provided that the party will make it appear under oath that he has not been fully heard and given full opportunity to present testimony on the same matter before the examiner. The verdict of the jury upon the questions of fact shall operate to the same extent as in the case of exceptions to an auditor's report in an ordinary civil action. (d) In all matters not otherwise provided for, the procedure upon the examiner's report and the exceptions thereto shall be in accordance with procedure prevailing as to the auditor's reports and exceptions thereto. (e) The right to grant a new trial upon any issue submitted to a jury and the right of appeal to the Supreme Court shall be as provided for in Code Sections 5-6-37 through 56-44, 5-6-48, and 5-6-49. (f) The judge may refer or recommit the record to the examiner in like manner as auditor's reports may be recommitted or he may on his own motion recommit it to the same or any other examiner for further information and report. Where an exception or exceptions to the examiner's report have been sustained by the court or by verdict on the trial of an issue of fact or where the Supreme Court reverses the judgment of the trial court, it shall not be necessary for the trial court to recommit the case to an examiner, but the judge shall proceed to enter a decree in accordance with the law and the facts as thus established and appearing from the record; provided, however, that if the judge, in his discretion, is of the opinion that it is in the interests of truth and justice that a recommitment to an examiner should be made, he may, upon the motion of any party or on his own motion, order a recommitment of the whole case or any part thereof or for the taking of additional testimony upon any matter which the court deems necessary to the rendition of a true and correct decree. O.C.G.A. §44-2-104 For the purposes of this article, every clerk of the superior court, every judge of the probate court, and every other officer in this state having charge of public records shall allow every examiner appointed by any court in this state free inspection of all the public
records relating to his office and in any manner pertaining to any matter under the investigation of an examiner. O.C.G.A. §44-2-105 In any case, by consent of the parties or upon the order of the judge, the examiner may procure the services of a stenographer to report the testimony taken before him. The stenographer's compensation, unless agreed on by the parties, shall be fixed by the judge and taxed as costs. O.C.G.A. §44-2-121 Every entry made in the register of decrees of title, in the title register, or upon the owner's certificate under any of the provisions of this article shall be signed by the clerk and dated with the year, month, day, hour, and minute accurately stated. O.C.G.A. §44-2-131 (a) Where the owner of registered land dies intestate and there is no administration upon the estate within 12 months from the date of his death or in the event administration shall terminate without the land being disposed of, the heirs at law of the intestate or any one or more of the persons who claim to be heirs at law of the intestate may petition the superior court of the county to have their title by descent declared as to the registered land. (b) The petition: (1) Shall set forth the names of all persons who are alleged to be the heirs at law and, if all are not joined, process or notice shall be served upon all those not joined; (2) Shall be verified by the affidavit of one of the petitioners; (3) Shall set forth in detail the name and last known address of the decedent; (4) Shall include a statement whether he was married, single, or a widower and, if married more than once, the names of all of his wives; (5) Shall include the names of all children and descendants of children, if any, showing in detail whether the parents of such children are living or dead; (6) Shall show in detail how and whether the persons who are alleged to be the heirs at law are in fact the heirs at law of such decedent under the rules of inheritance; (7) Shall give the date of the death of the decedent; (8) Shall set forth that the decedent died leaving no will; and (9) Shall state that in the judgment of the applicant there is no need for administration upon the estate. (c) Upon the petition being filed, the judge shall grant an order setting the petition down to be heard at the courthouse in the county where the land is located, on some day not less than 30 days from the date of the petition, and calling on all persons to show cause before the court on that day why the persons named as heirs at law in the petition should not be so declared to be by the judgment and decree of the court. A copy of the petition and the order of the court thereon shall be published in the newspaper in which the sheriff's sales of the county are advertised in like manner as sheriff's sales are advertised.
(d) On the day named for the hearing, unless the matter is continued by order or orders of the judge to some future time, the court shall proceed to hear and determine the question together with any objections which may be filed and to adjudge and decree that the alleged decedent is dead, that there is no administration on his estate, that he left no will, and who are his heirs at law; provided, however, if it appears that either the alleged decedent is not dead, or that there is administration upon the estate, or that an application for administration is pending, or that the decedent left a will, the petition shall be dismissed. (e) Upon granting an order of heirship, the court shall order a transfer of the registered title from the decedent to the heirs at law; and, upon production of the owner's certificate of the decedent and the judge's order for a transfer, the clerk shall register the transfer, cancel the certificate registered in the name of the decedent, cancel the owner's certificate, and issue a new owner's certificate in the name of the persons declared to be the heirs at law. (f) In the petition if the alleged heirs at law are of full age and under no disabilities and the same so appears to the court and if it further appears that they have voluntarily partitioned the land in kind among themselves, the court may, in connection with the order of transfer, direct that the certificate standing in the name of the decedent be canceled and that new certificates be registered and issued to each of the heirs for the particular parcel of land coming to each under the voluntary partition set forth in the petition. (g) If the decedent has left a widow, she shall be a party to the proceedings. The court shall specifically provide what interest or estate she shall take under the decree of heirship; and, except where in the decree the land is partitioned into separate tracts, the court shall, in the decree of heirship and in the order of transfer, specifically set forth, except where the widow is the sole heir, what undivided interest each heir shall take. (h) If the decedent is a female, the procedure shall be similar except insofar as the difference between the rights of the husband and wife upon the death of the spouse shall make changes necessary. (i) Where the wife claims to be entitled to take possession of the estate without administration under Code Section 53-4-2 of the "Pre-1998 Probate Code," if applicable, or Code Sections 53-1-7 and 53-2-1 of the "Revised Probate Code of 1998," the procedure shall be substantially in the same manner. O.C.G.A. §44-2-190 Upon the original registration of any land under this article, there shall be paid to the clerk as an assurance fund one-tenth of 1 percent of the value of the land to be determined by the court. The fund shall be subject to the trusts and conditions set forth in this part for the uses and purposes of this article. O.C.G.A. §44-2-191 All money received by the clerk under Code Section 44-2-190 shall be kept in a separate account and paid promptly into the state treasury upon the special trust and condition that
such moneys shall be set aside by the director of the Office of Treasury and Fiscal Services in trust as a separate fund for the uses and purposes of this article, to be known as the "Land Registration Assurance Fund," which fund is appropriated to the uses and purposes set forth in this article. O.C.G.A. §44-2-193 (a) Any person entitled to notice who had no actual notice of any registration under this article depriving him of any estate or interest in land and who is without remedy under this article may, within two years after accrual to him or to some person through whom he claims the right to bring such action, bring an action against the director of the Office of Treasury and Fiscal Services in the superior court in the county where such land is located for the recovery out of the assurance fund of any damages to which he may be entitled by reason of any such deprivation. The director shall be served by the second original of proceedings so filed, which service shall be sufficient. (b) The assurance fund shall be defended in such action and in any appeal by the Attorney General. The measure of damages shall be the value of the property at the time the right to bring the action first accrued; and any judgment rendered therefor shall be paid as provided in Code Section 44-2-195. (c) If any person entitled to bring such action shall be under the disability of infancy, insanity, imprisonment, or absence from the state in the service of the state or of the United States at the time the right to bring such action first accrued, the action may be brought by him or his privies within two years after the removal of such disability. (d) Notwithstanding subsection (a) of this Code section, all nonresidents of the state and all persons who are described in the proceedings as being unknown, or of unknown address, or as to whom it appears from the record that they could not be found so as to be served shall be considered as having had actual notice when notice has been published in accordance with this article. O.C.G.A. §44-2-194 If an action contemplated by Code Section 44-2-193 is brought to recover for loss or damage arising only through the legal operation of this article, the director of the Office of Treasury and Fiscal Services shall be the sole defendant. If the action is brought to recover for loss or damage arising on account of any registration made or procured through fraud, neglect, or wrongful act of any person not exercising a judicial function, both the director and such person or persons shall be made parties defendant. O.C.G.A. §44-2-210 (a) The fees payable under this article to the examiner of titles shall be as follows: (1) For examining a title and making a report to the court, an examiner shall receive $1.00 per $1,000.00 or fraction thereof on the value of land, as determined by the court, not to exceed a maximum $100.00, and postage, plus $10.00; and (2) In contested cases, for hearing the case and making a report to the court, the judge may, in his discretion, allow additional compensation but in an amount not
exceeding the same fee as that allowed an auditor for reporting his findings in equity cases under subsection (a) of Code Section 9-7-22. The examiner shall not be paid extra for reporting the evidence; but when a stenographer is used by consent of the parties or order of the judge, the stenographer shall be paid his usual fee. (b) The following fees shall be collected for the services of the sheriff under this article: (1) For ascertaining and reporting to the courts the names and addresses of the persons actually occupying the premises described in the petition, a fee as provided in paragraph (1) of subsection (b) of Code Section 15-16-21 for each separate residence; (2) For each service of process and notice required, a fee as provided in paragraph (1) of subsection (b) of Code Section 15-16-21; and (3) For posting a copy of the petition upon the premises, fees as provided in paragraph (6) of subsection (b) of Code Section 15-16-21. (c) For any other services of the clerk, the sheriff, or the surveyor which are not especially provided for in this Code section, a fee shall be fixed by the court to conform with what is usual and lawful for similar services rendered by such officer in ordinary cases. (d) Upon filing each application for initial registration, the applicant shall pay to the clerk the fee for civil cases as provided in Code Section 15-6-77. (e) In all contested cases and in all matters referred to the judge for his direction by any of the provisions of this article, the judge shall award the cost of the proceeding accordingly as in his discretion the justice of the case may dictate and, to that end, may assess all the costs against one of the parties or may divide the costs among the parties in such ratio as seems just. O.C.G.A. §44-2-221 The following is prescribed as the form of petition to be used when application is made for the original register of lands: IN THE SUPERIOR COURT OF ______ COUNTY STATE OF GEORGIA In re petition ) Civil action of ____ ) File no. ____ ORIGINAL PETITION FOR REGISTRATION OF LANDS The petition of ___________ shows: The petitioner applies to have the land hereinafter described brought under the provisions of the Land Registration Law, and his title thereto confirmed and registered as provided therein, and under oath shows the following facts: 1. Full name of each applicant ________________________________________ 2. Residence of each applicant __________________________________
3. Post office address of each applicant ________________________ 4. The name and address of applicant's agent or attorney upon whom process or notices may be served (not required unless applicant is a nonresident) ______________________________________________________________ 5. Full description of the lands (giving also land district and lot numbers where the land lies in that portion of the state where the lands have been surveyed by districts and numbers; and if more than one parcel is included, describe each parcel separately and distinctly). ______________________________________________________________ ______________________________________________________________ containing ______________ acres. 6. What is the value thereof? $ _______ 7. At what value was it last assessed for taxes? $__________ 8. What interest or estate does the applicant claim therein? ___ ____________________ 9. What is the value of the interest or estate claimed by the applicant? $ ______ 10. From whom did the applicant acquire the land? ________________ 11. Does the applicant claim title by prescription? ______________ (If so, set forth fully the color of title, if any, under which the prescription is claimed, and state the details of the possession by which it is claimed prescription has ripened. If the color of title consists of one or more instruments of record on the public records of the county, such instruments need not be copied or exhibited to the application otherwise than by giving the name of the grantor and the grantee, the date and nature of the instrument, and a reference to the book and page where recorded.) ______________________________________________________________
12. Does applicant claim title by a complete chain of title from the state or other original source of title? _________________ 13. Is there a true and correct abstract of applicant's title papers attached hereto? _____ 14. Do you know, or have information, of any other deed, writing, document, judgment, decree, mortgage, or instrument of any kind not set forth in the abstract which relates to this land or any part thereof, or which might affect the title thereto or some interest therein? If so, state the same. _____________ 15. Has the land, or any part thereof, ever been set apart as a homestead or exemption or as dower? If so, state particulars. _ ________________________________________ 16. Who is now in possession of the land? ________________________ 17. Do you know anyone else who claims to be in possession of the land or any part thereof? If so, give name and address. ______________________________________ 18. Give name and address of each person occupying the land or any part thereof, and state by what right or claim of right such occupancy is held. ___________________________________________ 19. Give the name, residence, and address of each and every person, other than the applicants, who claim any interest, adverse or otherwise, vested or otherwise, in the land or any part thereof, stating the nature of the claim, and if any such persons are under disability of any kind, state the nature of the disability. Nature Disability of Name Residence Address (if any) ______________________________________________________________ ______________________________________________________________ Claim
20. Give the name, residence, and address of the holder of every known lien, whether considered by the applicant to be valid or not.
Nature of Name Residence Address ______________________________________________________________
21. Give the names and addresses of the owners and occupants of all adjoining lands. ______________________________________________________________ 22. Is the land subject to any easement, except public highways and railroads in actual operation? If so, state fully. ______________________________________ 23. Give age of applicant. _____________ 24. Is the applicant male or female? __________; married or single? ______________; widow or widower? __________ 25. If married, give wife's (or husband's) name, and include her or him in the list of defendants.____________________________ 26. The applicant names as defendants the following persons whose names have been given above: ______________________________________________________________ ______________________________________________________________ and also all other persons "whom it may concern." Wherefore the applicant prays process and judgment accordingly. _____________________ Petitioner's attorney (To be sworn to by each applicant. Verification in case of a corporation may be made by any officer thereof; in case of minor or other persons under disability, by the person filing the petition in his behalf.) I do swear that I have read the foregoing petition, and have examined the schedules thereto attached, and that the same are true to the best of my knowledge and belief, and that nothing has been withheld in the answers which would in anywise affect the title to the land or any interest therein or which would disclose any person claiming an adverse interest, valid or not. I do further swear that I bona fide believe that the applicant is the true owner of the estate he seeks to have registered. _______________ Petitioner Sworn to and subscribed before me, this ______ day of ______________, ____.
______________ Notary (If more than one applicant, they may verify jointly or by separate affidavits.) EXHIBIT A (Attach abstract of title) O.C.G.A.§44-2-222 The following is prescribed as the form of process to be attached to the petition: IN THE SUPERIOR COURT OF ______ COUNTY STATE OF GEORGIA To the sheriffs of said state and their lawful deputies: The respondents _______________________ and all other persons whom it may concern are required to show cause before said court, on the ______ day of ______________, ____, (not less than 40 nor more than 50 days from date of process) why the prayers of the foregoing petition should not be granted, and why the court should not proceed to judgment in such cause. Witness the Honorable ______________, judge of said court, this the ______ day of ______________, ____. _______________ Clerk O.C.G.A. §44-2-223 The advertisement to be inserted in the newspaper in which sheriff's sales of the county are advertised for four insertions in separate weeks should be substantially in the following form: IN THE SUPERIOR COURT OF ______ COUNTY STATE OF GEORGIA In re petition ) Civil action of ____ ) File no. ____ To whom it may concern, and to (here insert the names of all respondents, if any, who reside beyond the limits of the state, or whose place of residence is unknown): Take notice that ______________ has filed in said court a petition seeking to register the following lands under the provisions of the Land Registration Law: (Here describe lands). You are warned to show cause to the contrary, if any you have, before said court on the ______ day of ______________, ____. This ______ day of ______________, ____. _______________ Clerk O.C.G.A. §44-2-227 A form reading substantially as follows should be used in appointing examiners:
IN THE SUPERIOR COURT OF ______ COUNTY STATE OF GEORGIA In re petition ) Civil action of ________ ) File no. ____ ORDER _______________________, a competent attorney at law, of good standing in his profession and of at least three years' experience, is hereby appointed an auditor in and for the ________ Judicial Circuit, to discharge the duties of examiner as provided in the Land Registration Law. This appointment is ________ (either general or for a particular case, as the case may be). This ______ day of ______________, ____. _____________________ Judge, Superior Court O.C.G.A. §44-2-228 The examiner is required to take the following oath, to be filed along with the order of his appointment in the office of the clerk of the superior court of his residence: "I, _______________________, do swear that I will faithfully, well, and truly perform the duties of examiner under the Land Registration Law, according to law to the best of my skill and ability. _______________ Sworn to and subscribed before me, this ______________, ____. _______________________" O.C.G.A. §44-2-229 Upon the clerk's notifying the judge that a petition has been filed, the judge shall promptly refer the petition to an examiner in substantially the following form: IN THE SUPERIOR COURT OF ________ COUNTY STATE OF GEORGIA In re petition ) Civil action of ________ ) File no. ____ ORDER Application having been filed to register ________________ land, it is hereby ordered that this matter be and is referred to ______________, as examiner for proceedings in conformity with the Land Registration Law. This ______ day of _____________, ____. ______________ Judge O.C.G.A. §44-2-230 The following is suggested as the general form of the preliminary report of an examiner:
IN THE SUPERIOR COURT OF ________ COUNTY STATE OF GEORGIA In re petition ) Civil action of ________ ) File no. ____ PRELIMINARY REPORT Application to register __________________________________________ ______________________ land having been duly considered, the undersigned, as examiner, makes the following preliminary report: I have examined all records as required by the Land Registration Law. I attach an abstract of the title (Schedule A) as shown on the public records and so far as obtainable from other trustworthy sources. The names and addresses of all persons, so far as I have been able to ascertain, who have any interest in the land, are set out in Schedule B hereto, showing their several apparent or possible interests and indicating upon whom and in what manner service should be made. A like disclosure of all adjoining landowners is set out in Schedule C hereto. I find the following to be a history of the possession _________________________ Special attention is called to the following matters: ________________________________________________________________ ________________________________________________________________ This ______ day of ____________, ____. _______________ Examiner SCHEDULE A (Attach examiner's full abstract) SCHEDULE B Names and addresses of all persons having apparent or possible interests in the land, other than applicants, and indicating upon whom and in what manner further service, if any, should be made ______________________________________________________ SCHEDULE C Names and addresses of all adjoining owners: _____________________ __________________________________________________________________ _________________________________________________________________ O.C.G.A. §44-2-231 The following is suggested as the general form of the examiner's final report:
IN THE SUPERIOR COURT OF ________ COUNTY STATE OF GEORGIA In re petition ) Civil action of ________ ) File no. ____ FINAL REPORT Application to register __________________________________________ __________________________________________________________________ land having been duly considered, the undersigned, as examiner, makes this his final report: The preliminary report filed by the undersigned is made a part hereof, and is correct, except as herein otherwise stated. The following proceedings have occurred before the examiner, and accompanying herewith is a brief (or a stenographic) report of the evidence taken on the hearing: ________________________________________________________________ In Exhibit ________, hereto, is a report of the matters ascertained by the independent examination of the examiner. My conclusions of fact are set forth in Exhibit ______ hereto annexed. My conclusions of law are set forth in Exhibit ______ hereto annexed. I find the state of the title to be as follows: ________________ ________________________________________________________________ ________________________________________________________________ I find that there are liens and encumbrances on the land as follows: ________________________________________________________________ ________________________________________________________________ This ______________, ____. _______________ Examiner O.C.G.A. §44-2-236 Upon request of any person and the payment of lawful fees, the clerk shall issue a certified copy of any certificate of title or of any entry thereon in like manner as he may issue certified copies of any other public record in his office; but, whenever he does so, he shall plainly mark in large legible letters across the face of the certificate the word "copy." If a certified copy of a canceled certificate or entry is made, in addition to transcribing a copy of the entry of cancellation, the clerk shall also plainly mark the words "canceled certificate" or "canceled entry," as the case may be, across the face of the copy. O.C.G.A. §44-5-2
All realty in this state is held under the state as the original owner thereof. It is free from all rent or service and is limited only by the right of eminent domain which remains in the state. O.C.G.A. §44-5-30 A deed to lands must be in writing, signed by the maker, and attested by at least two witnesses. It must be delivered to the purchaser or his representative and be made on a good or valuable consideration. The consideration of a deed may always be inquired into when the principles of justice require it. O.C.G.A. §44-5-32 Every bond for title, bond to reconvey realty, contract to sell or to convey realty or any interest therein and every transfer or assignment of any of such instruments shall, except as between the parties thereto, be executed with the same formality as is required for the execution of deeds conveying realty. O.C.G.A. §44-5-37 The principles of Code Sections 53-2-112 through 53-2-114 relating to elections shall also apply to deeds. O.C.G.A. §44-5-63 In a deed, a general warranty of title against the claims of all persons covers defects in the title even if they are known to the purchaser at the time he takes the deed. O.C.G.A. §44-5-85 The exclusive possession by a child of lands which originally belonged to the parent or parents, without payment of rent, for the space of seven years, creates a rebuttable presumption of a gift and conveys title to the child. The presumption may be rebutted by evidence of a loan, of a claim of dominion by the parent or parents acknowledged by the child, of a disclaimer of title by the child, or similar evidence. O.C.G.A. §44-9-1 The right of private way over another's land may arise from an express grant, from prescription by seven years' uninterrupted use through improved lands or by 20 years' use through wild lands, by implication of law when the right is necessary to the enjoyment of lands granted by the same owner, or by compulsory purchase and sale through the superior court in the manner prescribed by Article 3 of this chapter. O.C.G.A. §44-9-2 A right to an easement of light and air passing over another's land through existing lights or windows may not be acquired by prescription; but, when a person sells a house and the light necessary for the reasonable enjoyment thereof is derived from and across adjoining land belonging to such person, the easement of light and air over such vacant lot shall pass as an incident to the house sold as being necessary to the enjoyment thereof.
O.C.G.A. §44-9-4 A parol license to use another's land is revocable at any time if its revocation does no harm to the person to whom it has been granted. A parol license is not revocable when the licensee has acted pursuant thereto and in so doing has incurred expense; in such case, it becomes an easement running with the land. O.C.G.A. §44-9-6 An easement may be lost by abandonment or forfeited by nonuse if the abandonment or nonuse continues for a term sufficient to raise the presumption of release or abandonment. O.C.G.A. §44-9-21 The General Assembly finds that the use of solar energy in this state can help reduce the nation's reliance upon imported fuels and that solar energy development should, therefore, be encouraged. The General Assembly further finds that, as the use of solar energy devices increases, the possibility of future shading of such devices by buildings or vegetation will also increase. Therefore, the General Assembly declares that solar easements may be established to allow the owner of a solar energy device to negotiate for assurance of continued access to sunlight. O.C.G.A. §44-9-40 (a) The superior court shall have jurisdiction to grant private ways to individuals to go from and return to their property and places of business. Private ways shall not exceed 20 feet in width and may be as much less as the applicant may choose or as the court may find to be reasonably necessary. They shall be kept open and in repair by the person on whose application they are established or his successor in title. (b) When any person or corporation of this state owns real estate or any interest therein to which the person or corporation has no means of access, ingress, and egress and when a means of ingress, egress, and access may be had over and across the lands of any private person or corporation, such person or corporation may file his or its petition in the superior court of the county having jurisdiction; said petition shall allege such facts and shall pray for a judgment condemning an easement of access, ingress, and egress not to exceed 20 feet in width over and across the property of the private person or corporation. The filing of the petition shall be deemed to be the declaration of necessity; however, where it appears that the condemnor owns a right of access, ingress, and egress to his property over another route or owns an easement to a right of private way over another route, which right or easement is not less than 20 feet in width and which alternate route affords such person or corporation a reasonable means of access, ingress, and egress, or where the judge shall find that the exercise of such right of condemnation by the condemnor is otherwise unreasonable, the judge of the superior court is authorized under
such circumstances to find that the condemnation and the declaration of necessity constitute an abuse of discretion and to enjoin the proceeding. O.C.G.A. §44-9-41 The petition shall describe the easement of private way sought to be condemned over the lands of another and shall state the distance and direction of the private way and the nature of any improvements through which the private way will go. There shall be attached to the petition or incorporated therein a plat showing the measurements and location of the private way. The petition shall state the names and addresses of all persons owning an interest in the property, if known, and shall be served in the following manner: (1) Where the owner or owners of the property over which the private way is sought are known and reside in the county in which the land is located, the sheriff of the county shall serve each of the persons with a copy of the petition and any orders of the court thereon; and the sheriff shall make a return of the service; (2) Where the owners of the property are known but reside in another county of this state, they may be served (A) either by the sheriff of the county in which the property is located or by the sheriff of the county of the residence of the owner or owners, such sheriff to make a return of the service, or (B) by the person or corporation seeking to condemn the private way or an agent thereof, in which event the return of service duly filed as a part of the record shall be prima-facie evidence as to the service so made and if not traversed shall be conclusive as to the service; (3) Where the owner or owners of the property are known but reside outside of this state, the petition shall set forth the addresses of such nonresident owners, in which event it shall be the duty of the clerk of the superior court to cause a true and correct copy of the petition to be served upon the nonresident owner or owners. The clerk shall make and enter upon the original petition or attach thereto his certificate which certifies that he has served the owner or owners by mailing a copy of the petition by certified mail or statutory overnight delivery to the address given in the petition; and the clerk shall be allowed a fee of $2.00 for each entry of service to be taxed against the costs in the case; (4) In the event any of the owners are minors or persons non compos mentis, the petition shall so state, in which case the petition shall be served on each minor defendant and each non compos mentis defendant in the same manner as provided by paragraph (3) of subsection (e) of Code Section 9-11-4; and (5) In all cases, the matter shall be advertised once a week for four consecutive weeks in the county newspaper which carries the sheriff's advertisements. The advertisement shall describe the easement to be condemned as set forth in the petition and the owner or owners of the property so far as the same are known. Where this Code section has been complied with so far as possible, the advertisement shall be final and conclusive service
upon all persons who are unknown or upon persons who are known but whose addresses and places of residence are unknown; and, in such event, the certificate of the sheriff of the county in which the land is located that such persons do not reside within said county, that he has made diligent inquiry as to their addresses, and that the same are unknown, which certificate is duly filed with the clerk, shall be prima-facie evidence of the fact so certified and unless traversed by a party at interest shall be conclusive. For each certificate the sheriff shall charge the same fee as is provided by law for the service of the petition upon residents of the county. O.C.G.A. §44-9-42 The petition for condemnation shall name an assessor to act on behalf of the person or corporation seeking to condemn the easement of private way; and the selection of a board of assessors shall be in the way and manner provided for by Part 3 of Article 1 of Chapter 2 of Title 22. O.C.G.A. §44-9-43 Upon the filing of the petition for condemnation, the judge of the superior court, after taking into consideration the requirements of service provided for in Code Section 44-941, shall make and enter up an order requiring the owner or owners of the property to show cause before him on a day certain as to why the easement for private way should not be condemned and requiring the said owner or owners to name an assessor to act on his or their behalf. On the return day, the judge shall fix the time and place for a hearing before the board of assessors; but the same may be changed by the board of assessors in accordance with Code Section 22-2-60. In all other respects, the hearing before the board of assessors, together with the assessment of damages by them, shall be as is provided for in Part 4 of Article 1 of Chapter 2 of Title 22. O.C.G.A. §44-9-45 Upon the final condemnation of the private way, it shall become the duty of the condemnor or his successors in title to maintain the private way and to keep it open and in a state of good repair. Failure to comply with this requirement for a period of one year shall constitute an abandonment of the private way; and the title thereto shall revert to the owner of the property over which the private way was condemned or his successors in title. O.C.G.A. §44-9-46 The amount of compensation to be assessed against the condemnor for the private way desired shall be determined by a verdict of the jury; and the case shall stand for trial at the first term after service is perfected or at any subsequent term at which the case may be reached for trial. If an issue is made by pleadings filed by any defendant regarding the condemnor's right to have a private way established or with respect to the location or width thereof, such issues shall likewise be determined by the jury. Damages assessed
shall be paid into the court and shall be disbursed by the clerk in accordance with the court's order regarding the party or parties entitled thereto. O.C.G.A. §44-9-47 With respect to the judgment of the court in such case, any party may have all remedies provided by law, including a motion for a new trial, a motion for an appeal, a motion for judgment on the pleadings, or a motion for judgment notwithstanding the verdict. Before the judgment becomes final and after the determination of any motions or appeals, the compensation fixed by the jury shall be paid in cash into the registry of the court by the applicant; and, upon the failure to pay the compensation, the private way applied for shall be considered abandoned. Upon a motion made by any interested party and a notice of not less than ten days to the applicant for the private way, the court shall enter a judgment of abandonment accordingly. If the right to the private way is abandoned in this manner and, after notice to the applicant, the court so finds, no application for a private way over the same land shall thereafter be filed by the same applicant or his successor in title. O.C.G.A. §44-9-70 Any person, firm, corporation, company of persons, or corporation chartered under the laws of any state of the United States who is actually engaged in the business of mining iron, copper, gold, coal, or any other metal or mineral; quarrying marble, granite, or any other stone; or making copperas, sulphur, saltpeter, alum, or other similar articles and who needs a right of way for a railroad, turnpike, or roadway; an easement for pipelines or power lines; or a common road across the lands of others in order to operate his business successfully may obtain a right of way in the manner provided in this article for acquiring the right to convey water across the lands of others by the owners of mines. All proceedings in relation thereto shall be had and the damages shall be assessed and paid according to the method of condemning land provided in Title 22. O.C.G.A. §44-10-1 This article shall be known and may be cited as the "Georgia Uniform Conservation Easement Act." O.C.G.A. §44-11-9 (a) In all actions for the recovery of land, the defendant who has a bona fide possession of the land under adverse claim of title may set off the value of all permanent improvements placed on the land in good faith by himself or other bona fide claimants under whom he claims. If the legal title to the land is found to be in the plaintiff and if the value of such improvements at the time of the trial exceeds the mesne profits, the jury may render a verdict in favor of the plaintiff for the land and in favor of the defendant for the amount of the excess of the value of the improvements over the mesne profits. (b) The verdict mentioned in subsection (a) of this Code section shall find the value of the land itself at the time of the trial. Such verdict shall give the plaintiff the right:
(1) To have and recover the premises subject to the payment to the defendant of the excess of the value of the improvements over the mesne profits, such payment to be made by the plaintiff to the defendant within such time as may be fixed by the court in the decree; or (2) To receive from the defendant the value of the land and the mesne profits found by the jury to be due to the plaintiff, such payment to be made by the defendant to the plaintiff within such time as the court may direct by its decree. In the event that the plaintiff fails to make the payment pursuant to paragraph (1) of this subsection within the time allowed in the decree, the defendant shall have the right to pay to the plaintiff the value of the land and the mesne profits in accordance with paragraph (2) of this subsection. In all cases in which a setoff of improvements is sought in excess of mesne profits, the jury shall have the right to fix the time from which mesne profits shall be allowed. (c) Upon the defendant making the payment to the plaintiff with all court costs of the proceedings, the defendant shall then acquire and have all the right and title the plaintiff had and held in and to the property in dispute. The court may by its decree require the plaintiff to make such titles to the lands in dispute as may be necessary in the premises, or to have the premises sold by a commissioner appointed by the court and the proceeds of such sale divided between the plaintiff and the defendant in the ratio or proportion that the value of the land itself bears to the amount of the excess of value of improvements over the mesne profits, or to recover the value of the land itself together with the amount of any excess of the value of the mesne profits over and above the value of the improvements. In case the plaintiff elects to recover the value of the land itself together with the amount of the excess of value of mesne profits over the value of the improvements, any fi. fa. issued upon the verdict and judgment entered therein shall be levied upon the lands and improvements; and the same shall be sold by the sheriff after due advertisement under the law governing sheriffs' sales. (d) In those cases contemplated by this Code section, the court shall mold a decree to carry out and effectuate fully the provisions of the verdict. (e) The purchaser of the premises, whether the same are sold by a commissioner appointed by the court or by the sheriff under a fi. fa. as provided in subsection (c) of this Code section, shall acquire all the right, title, and interest in the land and the improvements owned and possessed by the plaintiff or the defendant. O.C.G.A. §44-11-12 The plaintiff shall attach an abstract of the title relied on for recovery to the petition for the recovery of land and mesne profits.
O.C.G.A. §44-11-30 When any person, either by himself, his agent, or his attorney in fact, shall take and subscribe an affidavit in writing before any officer authorized to administer an oath setting forth that he claims, in good faith, the right of possession to the described land or tenement and that such land or tenement is in the hands of another named person who does not in good faith claim a right to such possession and yet refuses to abandon the same, it shall be the duty of the sheriff of the county where the land or tenement is located, upon receiving such affidavit, to exhibit such affidavit to the person described as being in possession of such land or tenement at the earliest possible day and to turn such person out of possession unless the person in possession tenders to the sheriff a counteraffidavit stating that he claims, in good faith, a legal right to the possession of the land or tenement. O.C.G.A. §44-11-32 If the party in possession submits a counteraffidavit as provided in Code Section 44-1130, the sheriff shall not turn him out of possession but shall leave both parties in their respective positions. In such an event, the sheriff shall return both affidavits to the office of the clerk of the superior court of the county in which the land is located for a trial of the issue before a jury in accordance with the laws of this state. O.C.G.A. §44-12-21 For every violation of an express or implied contract and for every injury done by another to one's person or property, the law gives a right to recover and a remedy to enforce it. The right is a chose in action, and the remedy is an action at law. O.C.G.A. §44-13-40 Any debtor may, except as to wearing apparel and $300.00 worth of household and kitchen furniture and provisions, waive or renounce his right to the benefit of the exemption provided for by this article by a waiver, either general or specific, in writing simply stating that he does so waive or renounce such right, which waiver may be stated in the contract of indebtedness or may be made contemporaneously therewith or may be made subsequent to the execution of the contract of indebtedness in a separate paper. O.C.G.A. §44-13-42 Every debtor seeking the benefit of Code Section 44-13-41 shall make out a schedule of the debtor's household and kitchen furniture and provisions which shall set out the items and value thereof claimed to be exempt and shall return the schedule to the judge of the probate court of the county in which the applicant resides. It shall not be necessary to make any application for such exemption or to publish the schedule in a newspaper. The judge shall record the schedule in a book to be kept by him for that purpose. O.C.G.A. §44-13-60
(a) When an exemption under this article of realty and personalty or either has been applied for and set apart out of the property of a defendant in execution and the defendant in execution has no property except the real property on which the defendant resides on which to levy, if the plaintiff in execution seeks to have that real property levied on upon the ground that his debt falls within some or one of the classes for which the real property is bound under this article, such plaintiff, his agent, or his attorney may make an affidavit before any officer authorized to administer oaths that to the best of his knowledge and belief the debt upon which the execution is founded is one from which that real property is not exempt. Thereafter, it shall be the duty of the officer into whose hands the execution and the affidavit are placed to proceed at once to levy and sell as though the property had never been set apart. O.C.G.A. §44-13-63 Except as provided in Code Section 44-13-60, any officer knowingly levying on or selling property made exempt from sale shall be guilty of trespass; and any person allowed such exemption may recover for such trespass for their exclusive use. O.C.G.A. §44-13-87 The applicant for exemption from levy and sale of property under this article shall be permitted to select the property to be exempted but not to exceed the amount allowed by law. O.C.G.A. §44-13-100 a) In lieu of the exemption provided in Code Section 44-13-1, any debtor who is a natural person may exempt, pursuant to this article, for purposes of bankruptcy, the following property: (1) The debtor's aggregate interest, not to exceed $10,000.00 in value, in real property or personal property that the debtor or a dependent of the debtor uses as a residence, in a cooperative that owns property that the debtor or a dependent of the debtor uses as a residence, or in a burial plot for the debtor or a dependent of the debtor. In the event title to property used for the exemption provided under this paragraph is in one of two spouses who is a debtor, the amount of the exemption hereunder shall be $20,000.00; (2) The debtor's right to receive: (A) A social security benefit, unemployment compensation, or a local public assistance benefit; (B) A veteran's benefit; (C) A disability, illness, or unemployment benefit;
(D) Alimony, support, or separate maintenance, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor; (E) A payment under a pension, annuity, or similar plan or contract on account of illness, disability, death, age, or length of service, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor; and (F) A payment from an individual retirement account within the meaning of Title 26 U.S.C. Section 408 to the extent reasonably necessary for the support of the debtor and any dependent of the debtor; (2.1) The debtor's aggregate interest in any funds or property held on behalf of the debtor, and not yet distributed to the debtor, under any retirement or pension plan or system: (A) Which is: (i) maintained for public officers or employees or both by the State of Georgia or a political subdivision of the State of Georgia or both; and (ii) financially supported in whole or in part by public funds of the State of Georgia or a political subdivision of the State of Georgia or both; (B) Which is: (i) maintained by a nonprofit corporation which is qualified as an exempt organization under Code Section 48-7-25 for its officers or employees or both; and (ii) financially supported in whole or in part by funds of the nonprofit corporation; (C) To the extent permitted by the bankruptcy laws of the United States similar benefits from the private sector of such debtor shall be entitled to the same treatment as those specified in subparagraphs (A) and (B) of this paragraph, provided that the exempt or nonexempt status of periodic payments from such a retirement or pension plan or system shall be as provided under subparagraph (E) of paragraph (2) of this subsection; or (D) An individual retirement account within the meaning of Title 26 U.S.C. Section 408; (3) The debtor's interest, not to exceed the total of $3,500.00 in value, in all motor vehicles; (4) The debtor's interest, not to exceed $300.00 in value in any particular item, in household furnishings, household goods, wearing apparel, appliances, books, animals, crops, or musical instruments that are held primarily for the personal, family, or household use of the debtor or a dependent of the debtor. The exemption of the debtor's interest in the items contained in this paragraph shall not exceed $5,000.00 in total value;
(5) The debtor's aggregate interest, not to exceed $500.00 in value, in jewelry held primarily for the personal, family, or household use of the debtor or a dependent of the debtor; (6) The debtor's aggregate interest, not to exceed $600.00 in value plus any unused amount of the exemption, not to exceed $5,000.00, provided under paragraph (1) of this subsection, in any property; (7) The debtor's aggregate interest, not to exceed $1,500.00 in value, in any implements, professional books, or tools of the trade of the debtor or the trade of a dependent of the debtor; (8) Any unmatured life insurance contract owned by the debtor, other than a credit life insurance contract; (9) The debtor's aggregate interest, not to exceed $2,000.00 in value, less any amount of property of the estate transferred in the manner specified in Section 542(d) of U.S. Code Title 11, in any accrued dividend or interest under, or loan or cash value of, any unmatured life insurance contract owned by the debtor under which the insured is the debtor or an individual of whom the debtor is a dependent; (10) Professionally prescribed health aids for the debtor or a dependent of the debtor; and (11) The debtor's right to receive, or property that is traceable to: (A) An award under a crime victim's reparation law; (B) A payment on account of the wrongful death of an individual of whom the debtor was a dependent, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor; (C) A payment under a life insurance contract that insured the life of an individual of whom the debtor was a dependent on the date of such individual's death, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor; (D) A payment, not to exceed $10,000.00, on account of personal bodily injury, not including pain and suffering or compensation for actual pecuniary loss, of the debtor or an individual of whom the debtor is a dependent; or (E) A payment in compensation of loss of future earnings of the debtor or an individual of whom the debtor is or was a dependent, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor.
(b) Pursuant to 11 U.S.C. Section 522(b)(1), an individual debtor whose domicile is in Georgia is prohibited from applying or utilizing 11 U.S.C. Section 522(d) in connection with exempting property from his or her estate; and such individual debtor may exempt from property of his or her estate only such property as may be exempted from the estate pursuant to 11 U.S.C. Section 522(b)(2)(A) and (B). For the purposes of this subsection, an "individual debtor whose domicile is in Georgia" means an individual whose domicile has been located in Georgia for the 180 days immediately preceding the date of the filing of the bankruptcy petition or for a longer portion of such 180 day period than in any other place. (c) The exemptions and protections contained in this article are extended to intestate insolvent estates in all cases where there is a living widow or child of the intestate. O.C.G.A. §44-14-12 a) In lieu of the exemption provided in Code Section 44-13-1, any debtor who is a natural person may exempt, pursuant to this article, for purposes of bankruptcy, the following property: (1) The debtor's aggregate interest, not to exceed $10,000.00 in value, in real property or personal property that the debtor or a dependent of the debtor uses as a residence, in a cooperative that owns property that the debtor or a dependent of the debtor uses as a residence, or in a burial plot for the debtor or a dependent of the debtor. In the event title to property used for the exemption provided under this paragraph is in one of two spouses who is a debtor, the amount of the exemption hereunder shall be $20,000.00; (2) The debtor's right to receive: (A) A social security benefit, unemployment compensation, or a local public assistance benefit; (B) A veteran's benefit; (C) A disability, illness, or unemployment benefit; (D) Alimony, support, or separate maintenance, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor; (E) A payment under a pension, annuity, or similar plan or contract on account of illness, disability, death, age, or length of service, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor; and
(F) A payment from an individual retirement account within the meaning of Title 26 U.S.C. Section 408 to the extent reasonably necessary for the support of the debtor and any dependent of the debtor; (2.1) The debtor's aggregate interest in any funds or property held on behalf of the debtor, and not yet distributed to the debtor, under any retirement or pension plan or system: (A) Which is: (i) maintained for public officers or employees or both by the State of Georgia or a political subdivision of the State of Georgia or both; and (ii) financially supported in whole or in part by public funds of the State of Georgia or a political subdivision of the State of Georgia or both; (B) Which is: (i) maintained by a nonprofit corporation which is qualified as an exempt organization under Code Section 48-7-25 for its officers or employees or both; and (ii) financially supported in whole or in part by funds of the nonprofit corporation; (C) To the extent permitted by the bankruptcy laws of the United States similar benefits from the private sector of such debtor shall be entitled to the same treatment as those specified in subparagraphs (A) and (B) of this paragraph, provided that the exempt or nonexempt status of periodic payments from such a retirement or pension plan or system shall be as provided under subparagraph (E) of paragraph (2) of this subsection; or (D) An individual retirement account within the meaning of Title 26 U.S.C. Section 408; (3) The debtor's interest, not to exceed the total of $3,500.00 in value, in all motor vehicles; (4) The debtor's interest, not to exceed $300.00 in value in any particular item, in household furnishings, household goods, wearing apparel, appliances, books, animals, crops, or musical instruments that are held primarily for the personal, family, or household use of the debtor or a dependent of the debtor. The exemption of the debtor's interest in the items contained in this paragraph shall not exceed $5,000.00 in total value; (5) The debtor's aggregate interest, not to exceed $500.00 in value, in jewelry held primarily for the personal, family, or household use of the debtor or a dependent of the debtor; (6) The debtor's aggregate interest, not to exceed $600.00 in value plus any unused amount of the exemption, not to exceed $5,000.00, provided under paragraph (1) of this subsection, in any property;
(7) The debtor's aggregate interest, not to exceed $1,500.00 in value, in any implements, professional books, or tools of the trade of the debtor or the trade of a dependent of the debtor; (8) Any unmatured life insurance contract owned by the debtor, other than a credit life insurance contract; (9) The debtor's aggregate interest, not to exceed $2,000.00 in value, less any amount of property of the estate transferred in the manner specified in Section 542(d) of U.S. Code Title 11, in any accrued dividend or interest under, or loan or cash value of, any unmatured life insurance contract owned by the debtor under which the insured is the debtor or an individual of whom the debtor is a dependent; (10) Professionally prescribed health aids for the debtor or a dependent of the debtor; and (11) The debtor's right to receive, or property that is traceable to: (A) An award under a crime victim's reparation law; (B) A payment on account of the wrongful death of an individual of whom the debtor was a dependent, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor; (C) A payment under a life insurance contract that insured the life of an individual of whom the debtor was a dependent on the date of such individual's death, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor; (D) A payment, not to exceed $10,000.00, on account of personal bodily injury, not including pain and suffering or compensation for actual pecuniary loss, of the debtor or an individual of whom the debtor is a dependent; or (E) A payment in compensation of loss of future earnings of the debtor or an individual of whom the debtor is or was a dependent, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor. (b) Pursuant to 11 U.S.C. Section 522(b)(1), an individual debtor whose domicile is in Georgia is prohibited from applying or utilizing 11 U.S.C. Section 522(d) in connection with exempting property from his or her estate; and such individual debtor may exempt from property of his or her estate only such property as may be exempted from the estate pursuant to 11 U.S.C. Section 522(b)(2)(A) and (B). For the purposes of this subsection, an "individual debtor whose domicile is in Georgia" means an individual whose domicile has been located in Georgia for the 180 days immediately preceding the date of the filing of the bankruptcy petition or for a longer portion of such 180 day period than in any other place.
(c) The exemptions and protections contained in this article are extended to intestate insolvent estates in all cases where there is a living widow or child of the intestate. O.C.G.A. §44-14-162.3 a) The notice requirement of Code Section 44-14-162.2 shall apply only to the exercise of a power of sale of property all or part of which is to be used as a dwelling place by the debtor at the time the mortgage, security deed, or lien contract is entered into. (b) The notice requirement of Code Section 44-14-162.2 shall apply to all nonjudicial foreclosure sales under a mortgage, security deed, or other lien contract taking place after July 1, 1981, this Code section being procedural and remedial in purpose. (c) No waiver or release of the notice requirement of Code Section 44-14-162.2 shall be valid when made in or contemporaneously with the security instrument containing the power of nonjudicial foreclosure sale; but, notwithstanding the requirements of Code Sections 44-14-162.1 through 44-14-162.4, a subsequent quitclaim deed in lieu of foreclosure shall be valid and effective as such.
O.C.G.A. § 44-5-160 Title by prescription is the right to property which a possessor acquires by reason of the continuance of his possession for a period of time fixed by law. O.C.G.A. § 44-5-161 (a) In order for possession to be the foundation of prescriptive title, it: (1) Must be in the right of the possessor and not of another; (2) Must not have originated in fraud except as provided in Code Section 44-5-162; (3) Must be public, continuous, exclusive, uninterrupted, and peaceable; and (4) Must be accompanied by a claim of right. (b) Permissive possession cannot be the foundation of a prescription until an adverse claim and actual notice to the other party. O.C.G.A. §44-5-162 (a) In order for fraud to prevent the possession of property from being the foundation of prescription, such fraud must be actual or positive and not merely constructive or legal. (b) When actual or positive fraud prevents or deters another party from acting, prescription shall not run until such fraud is discovered. O.C.G.A. §44-5-163
Possession of real property in conformance with the requirements of Code Section 44-5161 for a period of 20 years shall confer good title by prescription to the property against everyone except the state and those persons laboring under the disabilities stated in Code Section 44-5-170. O.C.G.A. §44-5-165 Actual possession of lands may be evidenced by enclosure, cultivation, or any use and occupation of the lands which is so notorious as to attract the attention of every adverse claimant and so exclusive as to prevent actual occupation by another. O.C.G.A. §44-5-167 Possession under a duly recorded deed will be construed to extend to all the contiguous property embraced in the deed. O.C.G.A. §44-5-171 Prescription shall not run against persons under disability during the period of the disability. Upon removal of the disability the prior possession may be tacked or added to the subsequent possession to make out the prescription. O.C.G.A. §44-5-173 (a) Prescription shall not run against an unrepresented estate until representation is had thereon, provided such representation commences within five years. (b) Prescription shall not run against a joint title which cannot be severally enforced or where any of the joint owners labor under one of the disabilities specified in Code Section 44-5-170. (c) Prescription shall not run against a party when his action, timely commenced, is involuntarily dismissed or voluntarily dismissed for the first time if he recommences the same within six months. O.C.G.A. §44-5-174 In making out a prescriptive title, an innocent purchaser may not tack to the time period of his own possession the time of possession of a grantor whose possession originated through fraud against the true owner.
Elliott, James (son of George); County Morgan; Military District Patrick's; Land District 18; Lot 37; Date 13 Dec 1826 Law, William; County Richmond; Military District Luther's; Land District 18; Lot 73; date 20 Feb 1824 Taff, William B.; County Putnam; Military District Tomlinson's; Land District 18; Lot 74; date 29 Jul 1840 Johnson, Locklin; County Putnam; Military District Cooper's; Land District 15; Lot 73; date 17 Dec 1829
THE STATE v. JOHNSON. S97G1681. (269 Ga. 370) (499 SE2d 56) (1998) That statute sets forth three ways to commit the crime of false statement: (1) when a person knowingly and wilfully falsifies a material fact; (2) when a person makes a false, fictitious, or fraudulent statement or representation; or (3) when a person "makes or uses any false writing or document, knowing the same to contain any false, fictitious, or fraudulent statement or entry." Id. This appeal involves the third way of violating OCGA 16-10-20. State v. Luster, 204 Ga. App. 156, 158 (1) (a) (ii) (419 SE2d 32) (1992). Even construing OCGA 16-10-20 strictly against the State, see generally Jowers v. State, 225 Ga. App.
809 (2) (484 SE2d 803) (1997), the language therein unambiguously prohibits an individual from making or using any false writing or document, without regard to the identity of the individual who initially made or subsequently used the false document Where statutory language is plain and unequivocal and leads to no absurd or impracticable consequence, the court has no authority to place a different construction upon it. See generally Holden v. State, 187 Ga. App. 597 (2) (370 SE2d 847) (1988). It thus follows that under OCGA 16-10-20, all individuals who use a false writing or document, knowing it to contain any false, fictitious or fraudulent statement or entry, in any matter within the jurisdiction of the State or its political subdivisions, may be charged with violating the statute. . "Any party to a crime who did not directly commit the crime may be indicted, tried, convicted, and punished for commission of the crime upon proof that the crime was committed and that he was a party thereto." Id. It is not necessary that the State allege 162-20 and 16-2-21 in the indictment. State v. Military Circle Pet Center, 257 Ga. 388 (360 SE2d 248) (1987); see also Jenkins v. State, 172 Ga. App. 715 (4) (324 SE2d 491) (1984). Accordingly, we reverse the Court of Appeals' affirmance of the trial court's grant of Johnson's plea to the jurisdiction and dismissal of the indictment. AVERY v. CHRYSLER MOTORS CORPORATION et al. A94A1408. (214 Ga. App. 602) (448 SE2d 737) (1994) Theft by deception and civil fraud have different elements and are not necessarily proved by the same evidence. See Robinson v. State, 198 Ga. App. 431, 433 (401 SE2d 621) (1991). Theft by deception is committed when a person "obtains property by any deceitful means or artful practice with the intention of depriving the owner of the property." OCGA 16-8-3 (a). "A person deceives if he intentionally: (1) Creates or confirms another's impression of an existing fact or past event which is false and which the accused knows or believes to be false; [or] (2) Fails to correct a false impression of an existing fact or past event which he has previously created or confirmed. . . ." OCGA 16-8-3 (b). Although OCGA 16-8-3 (b) (2) does not specifically state that a deceiving person must "know[ ] or believe[ ]" an impression is false, that state of mind is implicit in the requirement of OCGA 16-8-3 (b) (2) that a deceiving person "intentionally" fail to correct a false impression; without knowledge or belief that an impression is false, there can be no intentional failure to correct it. Deceit does "not, however, include . . . exaggeration by statements unlikely to deceive ordinary persons in the group addressed." OCGA 16-8-3 (c).
"In all cases of [fraud], knowledge of the falsehood constitutes an essential element of the tort. A fraudulent or reckless representation of facts as true when they are not, if intended to deceive, is equivalent to a knowledge of their falsehood even if the party making the representation does not know that such facts are false." OCGA 51-6-2 (b); see also OCGA 23-2-52; 23-2-53. "A fraud may be committed by acts as well as words." OCGA 51-6-4 (a). It has often been stated that " '[t]he tort of fraud has five elements: a false representation by a defendant, scienter, intention to induce the plaintiff to act or refrain from acting, justifiable reliance by plaintiff, and damage to plaintiff.' " Baldwin v. Roberts, 212 Ga. App. 546, 547 (2) (442 SE2d 272) (1994).
CONCERNING “REFORMATION” “Motion for Reformation” of the 1941 Easement agreement that Georgia Power previously swore was properly executed and recorded. Defendants ask this Court to falsify or to allow falsification of Real Estate Records. Georgia Power claims “scrivener’s error”, “mutual mistakes”, which fails as a matter of law. Evidence suggests that Georgia Power caused the easement to be drafted, thereby causing a “unilateral mistake” which does not warrant reformation, that than by “mutual mistake” as they suggest. See: Cox v Smith, 244 Ga. 280, (260 S.E.2d 310) (1979) concerning “unilateral mistake” held: “ … the evidence shows, … was drafted at the direction of only one of the contracting parties, …therefore …was a … a unilateral mistake, which will not warrant reformation. Delong v. Cobb, supra, (1a) and cit.” See also: Fox et., al., v. Washburn, et., al., 264 Ga. 617, 277 (449 SE2d 513)(1994) Carley Dissenting: “Construing this … the sole result of Washburn's unilateral mistake in failing to advise the ..., since Fox relied entirely upon Washburn to advise the attorney as to the terms of the deed … Thus, the undisputed evidence shows that there was no reformable mutual mistake… See A. J. Concrete Pumping v. Richard O'Brien Equip. Sales, 256 Ga. 795, 796 (1) (353 SE2d 496) (1987); Layfield v. Sanford, 239 Ga. 816, 817 (1) (238 SE2d 899) (1977); Gauker v. Eubanks, 230 Ga. 893, 896 (1) (199 SE2d 771) (1973). The evidence shows, at most, a unilateral mistake on the part of Washburn…” See also: "Mutual mistake, in relation to reformation, means a mistake shared by, or participated in by, both parties, or a mistake common to both parties, or reciprocal to both parties; … the same misconception in respect of the terms and conditions …, the instrument as written does not express the contract or intent of either of the parties." [Cit.] Lawton v. Byck, 217 Ga. 676, 681, 682 (124 SE2d 369) (1962).
Further, the defendants have not met the burden of clear, unequivocal and decisive evidence. See the following: Curry v. Curry, 267 Ga. 66, 1721(473 SE2d 760)(1996), Justice Carley’s dissent joined by Justice Thomson: “The burden was on Grandson to prove that the legal description in the 1988 deed was a mutual mistake… He could not meet this burden by a mere preponderance of the evidence, but only with "clear, unequivocal, and decisive" evidence. OCGA 23-2-21 (c); Carroll v. Craig, 214 Ga. 257, 261 (5) (104 SE2d 215) (1958).” Reformation is barred by “Equitable Estoppel” as well. See the following: Thompson v. McVey, 12th District Court of Appeals, Ohio Supreme Court, http://vlex.com/vid/25605145 (2006) “Equitable estoppel prevent[s] one party from taking unfair advantage of another when, through false language or conduct,… has induced another person to act in a certain way, with the result that the other person has been injured in some way." Black's Law Dictionary (7th Ed.Rev. 1999) 571. The essential elements of equitable estoppel are: (1) the nonrelying party made a factual misrepresentation, (2) that was misleading, (3) that induced actual reliance that was reasonable and in good faith, and (4) that caused detriment to the relying party. Chase Manhattan Bank v. Parker, Butler App. No. CA2003-11-299, 2005-Ohio-1801, Â20. See also: Minor, et., al., v. Finch, et., al., 228 Ga. (58 S.E.2d 389), 206 Ga. 721(1950): “ … parties may reform …, so long as accrued rights of third persons are not disturbed; ….” “ … equitable power to relieve from mistake "shall be exercised with caution, and to justify it the evidence shall be clear, unequivocal, and decisive as to the mistake." …"where the parties have reduced their contract, agreement, or stipulation to writing, and assented thereto, it is the best evidence of the same." This is a general rule of law. 45 Am. Jur., 649, § 112.” “ This court has uniformly laid down the rule that, where reformation is sought upon the ground of mutual mistake, the mistake must be shown by evidence which is clear, unequivocal, and decisive.” “ … the present case, the verified petition could not have any effect as evidence. Mrs. Crandall was dead, and to permit the verified petition to be given the effect of evidence would violate the rule that, where one party is dead, the other is incompetent to testify in his own behalf. Code, § 38-1603 (1); Kilpatrick v. Strozier, 67 Ga. 247; Sivell v. Hogan, 115 Ga. 667 (42 S.E. 151); Arnold v. Freeman, 181 Ga. 654 (183 S.E. 811). See also the following cases: Trout v. Goodman, 7 Ga. 383, 385 (4),… held: "It is conceded that those who undertake to rectify an agreement, by showing a mistake, undertake a task of great difficulty … strongest proof possible;… it must be irrefragable proof. … will exercise very sparingly, and only upon the clearest and most satisfactory proof of the intention of the parties."
Wyche v. Greene, 11 Ga. 159, 160 (4), … held: "As to the degree of proof that will be required, before relief will be granted … The mistake itself should be plain and made out by evidence clear of all reasonable doubt."’ Ligon v. Rogers, 12 Ga. 281, 287, 288,… held: "The general rule is, that the written instrument furnishes better evidence of the deliberate intention of the parties to it than any parol evidence can supply; and the general rule must prevail, unless … by showing by clear and satisfactory evidence, that either by accident, fraud, or mistake, the written instrument does not contain and express what the parties intended it should contain and express, at the time of its execution."’ Wall v. Arrington, 13 Ga. 89 (7),…held: "A Court …, is very slow in exerting it to reform …requires the clearest and strongest evidence... It is not sufficient, … to presume a mistake; the evidence must be clear, unequivocal, and decisive."’ Helton v. Shellnut, 186 Ga. 185 (4), (197 S.E. 287), … held: "To authorize a verdict reforming a deed upon the ground of mutual mistake, the evidence, like the petition, should at least by inference show the particular mistake and illustrate how it occurred; and it is also the rule that 'the evidence shall be clear, unequivocal, and decisive as to the mistake.'" The same rule is stated in Yablon v. Metropolitan Life Ins. Co., 200 Ga. 693, 704 (2), (38 S.E.2d 534).” Reformation must be denied due to the seven year statute of limitation. Further, Reformation is estopped by the doctrine of laches. See: Evans v. Lipscomb, 266 Ga. 767 (470 SE2d 641): “We granted …to determine whether the superior court erred in holding …reformation was not barred, as a matter of law, by the applicable statute of limitation. We reverse.” “ 1. "An action to reform a written instrument can be brought at any time within seven years …, if not barred by laches." Whittle v. Nottingham, 164 Ga. 155, 161 (3) (138 S.E. 62) (1927).” “ …asserts … should not begin to run … discovered the mistake …, or,… should have discovered the mistake …the statute of limitation should be tolled... fail.” “ … is not a good response to the statute of limitation. Slade v. Barber, 200 Ga. 405, 410 (2) (37 S.E.2d 143) (1946). *fn4” ” The present action is timebarred and the superior court erred in finding otherwise.” “ Judgment reversed. All the Justices concur.” See also: Bradshaw v. City of Atlanta, 275 Ga.App. 609, (621 SE2d 563) http://www.versuslaw.com> (2005): “ The trial court dismissed … pursuant to … statutes of limitation for actions based on a mutual mistake or fraud...We discern no error and affirm.”
“ … from filing suit in a timely manner. See Leathers v. Timex Corp., 174 Ga. App. 430, 431-432 (2) (330 SE2d 102) (1985) … within the applicable statutes of limitation, the trial court properly dismissed his suit. See id. at 432 (2). For a “Reformation”, the action must consist of original parties to the original agreement, or privies to the original estate. Neither Plaintiff Ms. McDonald, nor Plaintiff Mr. Stegeman were part of the original agreement, and the agreement no longer involves the original estate of the original owner. Plaintiffs further believe that Dr. R. F. Well is no longer alive and legally Georgia Power cannot speak for Dr. Wells in his absence. See: Moore v McBrayer, et., al., Ga.App. 0000464, No. A07A2288 < http://www.versuslaw.com> (2008): “ "When two parties have made a mutual mistake in the creation …, permit reformation ... However, … is limited to those who are either parties to the original deed … such original parties." (Footnotes omitted.) Gregorakos v. Wells Fargo Nat. Ass'n, 285 Ga. App. 744, 746 (1) (647 SE2d 289) (2007). ..”” See also: Rawson v. Brosnan, 187 Ga. at 626 (on motion for reconsideration). See OCGA § 23-234.” “Moore was neither a party nor a … a privy in estate, because a privy in estate is a successor to the same estate in the same property,"…, even if the agreement … was based upon mutual mistake, …is not entitled to a reformation… Rawson v. Brosnan, 187 Ga. at 626-628 (on motion for reconsideration). See also Gregorakos v. Wells Fargo Nat. Ass'n, 285 Ga. App. at 746 (1); Empire Land Co. v. Stokes, 212 Ga. 707, 709 (2) (95 SE2d 283) (1956).” U.S. Supreme Court Middlesex County Ethics Comm. v. Bar Assn., 457 U.S. 423 (1982) Middlesex County Ethics Committee v. Garden State Bar Association No. 81-460 Argued March 31, 1982 Decided June 21, 1982 457 U.S. 423 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR Page 457 U. S. 432 The policies underlying Younger are fully applicable to noncriminal judicial proceedings when important state interests are involved. Moore v. Sims, 442 U. S. 415, 442 U. S. 423 (1979); Huffman v. Pursue, Ltd., 420 U. S. 592, 420 U. S. 604-605 (1975). The importance of the state interest may be demonstrated by the fact that the noncriminal proceedings bear a close relationship to proceedings criminal in nature, as in Huffman, supra. Proceedings necessary for the vindication of important state policies or for the
functioning of the state judicial system also evidence the state's substantial interest in the litigation. Trainor v. Hernandez, 431 U. S. 434 (1977); Juidice v. Vail, 430 U. S. 327 (1977). Where vital state interests are involved, a federal court should abstain "unless state law clearly bars the interposition of the constitutional claims." Moore, 442 U.S. at 442 U. S. 426. "[T]he . . . pertinent inquiry is whether the state proceedings afford an adequate opportunity to raise the constitutional claims. . . ." Id. at 442 U. S. 430. See also Gibson v. Berryhill, 411 U. S. 564 (1973). The question in this case is threefold: first, do state bar disciplinary hearings within the constitutionally prescribed jurisdiction of the State Supreme Court constitute an ongoing state judicial proceeding; second, do the proceedings implicate important state interests; and third, is there an adequate opportunity in the state proceedings to raise constitutional challenges. As the Court acknowledges, absent an ongoing judicial proceeding in which there is an adequate opportunity for a party to raise federal constitutional challenges, Younger is inapplicable. Ante at 457 U. S. 432. See also Gibson v. Berryhill, 411 U. S. 564, 411 U. S. 577 (1973). Here, it is unclear whether, at the time the lower courts addressed this issue, there was an adequate opportunity in the state disciplinary proceedings to raise a constitutional U.S. Supreme Court Pennzoil v. Texaco, Inc., 481 U.S. 1 (1987) Pennzoil v. Texaco, Inc. No. 85-1798 Argued January 12, 1987 Decided April 6, 1987 481 U.S. 1 I also agree with his conclusion that the District Court was not required to abstain under the principles enunciated in Younger v. Harris, 401 U. S. 37 (1971). Post at 481 U. S. 30, n. 2. I adhere to my view that Younger is, in general, inapplicable to civil proceedings, especially when a plaintiff brings a § 1983 action alleging violation of federal constitutional rights. See Huffman v. Pursue, Ltd., 420 U. S. 592, 420 U. S. 613 (1975) (BRENNAN, J., dissenting) (Younger held "that federal courts should not interfere with pending state criminal proceedings, except under extraordinary circumstances" (emphasis in original)); Juidice v. Vail, 430 U. S. 327, 430 U. S. 342 (1977) (BRENNAN, J., dissenting) ("In congressional contemplation, the pendency of state civil proceedings was to be wholly irrelevant. The very purpose of § 1983 was to interpose the federal courts between the States and the people, as guardians of the people's federal rights'") (quoting Mitchum v. Foster, 407 U. S. 225, 407 U. S. 242 (1972)).
William Eugene MIOFSKY, Appellant,v.SUPERIOR COURT OF the STATE OF CALIFORNIA, In and For theCOUNTY OF SACRAMENTO; Elmer Galioni, M.D.; BruceKaldor, M.D.; and Alfred French, M.D., Appellees United States Court of Appeals, Ninth Circuit. - 703 F.2d 332 Argued and Submitted July 13, 1982.Decided Jan. 3, 1983 We recognize that, as a general proposition, "state courts shall remain free from interference by federal courts." Atlantic Coast Line R.R. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 282, 90 S.Ct. 1739, 1741, 26 L.Ed.2d 234 (1970). That has been Congress's mandate since it first enacted the Anti-Injunction Act in 1793, providing that in federal courts "a writ of injunction [shall not] be granted to stay proceedings in any court of a state." Act of March 2, 1793 Sec. 5, 1 Stat. 335 (current version at 28 U.S.C. Sec. 2283 (1976)). However, civil rights actions under Sec. 1983 are among the exceptions to the Anti-Injunction Act that have been "expressly authorized by Act of Congress," id. See Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972). Thus, as Mitchum makes clear, Congress has not rendered federal courts impotent in the face of an infringement of constitutional rights by the judicial arm of state government. As the Court said in Mitchum, "[t]he very purpose of Sec. 1983 was to interpose the federal courts between the States and the people, as guardians of the people's federal rights--to protect the people from unconstitutional action under color of state law, 'whether that action be executive, legislative, or judicial.' " 407 U.S. at 242, 92 S.Ct. at 2162 (quoting Ex parte Virginia, 100 U.S. 339, 346, 25 L.Ed. 676 (1879) (emphasis added)). the intent of the parties to the subdivision covenants. Such a result: (a) contravenes Georgia's constitutional and statutory scheme; (b) violates public policy; (c) produces a manifestly unjust result; (d) significantly departs from decades of legal precedent; and (e) defies common sense. An individual's property right is of such paramount importance that both the U.S. Constitution and the Georgia Constitution are dedicated to the protection of private property. No fewer than eleven (11) separate paragraphs of the Georgia Constitution 4 expressly address individual property rights. Particularly, the Georgia Constitution emphasizes that protection of property is "the paramount duty of government[,]" 5 and this very Court has repeatedly held that the "right of the humblest individual in the enjoyment of his property must be protected." 6 So important are property rights that the Georgia Legislature has codified property-related torts, thereby providing statutory causes of action for any interference with an individual's property rights. 7 These property rights extend by statute to rights-of-way. 8 Despite the protections afforded by Georgia's Constitution and statutes, and despite this Court's mandate that the humblest individual's property rights must be protected,…
4: See, e.g., Georgia Constitution, Art. I, § I, I, II, IV, XXVI, and XXVII; Art. III, § III, I; Art. VII, § I, II and III; Art. VII, § II, II and IV; and Art. IX, § VII, III. 5: Georgia Constitution, II. 6: Williams v. LaGrange, 213 Ga. 241 (1957); Ammons v. Central of Georgia Railway Co., 215 Ga. 758 (1960). 7: OCGA §§ 51-9-1, 51-9-2, 51-9-3, and 51-9-10. 8: OCGA § 51-9-10. Such a result: (a) contravenes Georgia's constitutional and statutory scheme; (b) violates public policy; (c) produces a manifestly unjust result; (d) significantly departs from decades of legal precedent; and (e) defies common sense. The Opinion of the Court of Appeals Contravenes Georgia's Constitutional and Statutory Scheme, Departs Substantially from Decades of Precedent, Violates Public Policy, and Defies Common Sense The Opinion of the Court of Appeals contravenes Georgia's constitutional and statutory scheme, departs substantially from decades of precedent, is contrary to public policy, and defies common sense. 1. The Opinion of the Court of Appeals Contravenes Georgia's Constitutional and Statutory Scheme, and also Departs Significantly from Decades of Legal Precedent. As noted above, the Georgia Constitution and this Court consider an individual's property rights to be of paramount importance. 23 Given that an individual's home is of such importance, Georgia provides statutory remedies for any interference with an individual's property rights. For example, OCGA § 51-9-1 recites that "[t]he right of enjoyment of private property being an absolute right of every citizen, every act of another which unlawfully interferes with such enjoyment is a tort for which an action shall lie." 24 Rather than requiring ownership of property, OCGA § 51-9-3 permits those in bare possession to bring an action for trespass.25 The issue of whether one actually possesses land is a question of fact that cannot be disposed of on summary judgment. 26 Despite Georgia's constitutional and statutory scheme, which emphasizes the importance of an individual's property rights, the Court of Appeals deprives a homeowner of the right to bring an action to prevent damage to land, which indisputably affects the value of the home and for which the homeowner has actual possession. Even though actual possession is a question of fact
23: Georgia Constition, Art. I, § I, II. Williams v. LaGrange 213 Ga. 241 (1957); Ammons v. Central of Georgia Railway Co., 215 Ga. 758 (1960). 24: OCGA § 51-9-1 (emphasis supplied). 25: OCGA § 51-9-3 ("The bare possession of land shall authorize the possessor to recover damages from any person who wrongfully interferes with such possession in any manner"). 26: Housing Authority of Atlanta v. Famble 170 Ga. App. 509, 520 (1984); Friendship Baptist Church, Inc. v. West 265 Ga. 745, 746 (1995) (If the possession is not clearly evident, as in enclosure or cultivation, then "possession becomes a question of Furthermore, while OCGA § 51-9-10 provides that an "unlawful interference with a right-of-way or a right of common constitutes a trespass to the party entitled thereto[,]" 36 the Court of Appeals limits the statutory reach of OCGA § 51-9-10 to only the rights of ingress and egress. 37 This is contrary to precedent: The damages, therefore, that an individual may recover for injuries to his property need not necessarily be caused by acts amounting to trespass, or by an actual physical invasion of his real estate; but if his property be depreciated in value by his being deprived of some right of use or enjoyment growing out of and appurtenant to his estate as the direct consequence of the construction and use of any public improvement, his right of action is complete, and he may recover to the extent of the injury sustained. 38 It makes no sense that OCGA § 51-9-10 permits a homeowner to It makes no sense that OCGA § 51-9-10 permits a homeowner to recover for the lesser act of hindering access to a right-of-way with no physical damage to the right-of-way, yet prohibits a homeowner from recovering for the greater harm of actual physical damage to the right-of-way. Such a construction of OCGA § 51-9-10 is contrary to established precedent, which permits recovery for "being deprived of some right of use or enjoyment growing out of and appurtenant to [a homeowner's] estate." 39 The Opinion of the Court of Appeals also defies common sense. As Justice Frankfurter noted, and as the Georgia courts have recognized, "[t]here comes a point where th[e] Court should not be ignorant as judges of what we know as men." 42 Here, the Court of Appeals did exactly what Justice Frankfurter cautioned against. A review of the damaged yard, shown in Exh. C, clearly evidences that the damaged land is an integral portion of the homeowner's yard, irrespective of whether or not it is a right-of-way. "Actual possession of lands may be evidenced by enclosure, cultivation, or any use and occupation of the lands[,]" 55 and since actual possession is a separate factual legal inquiry from ownership or legal possessory interest, the Court was required to consider Petitioner's factual indicia of actual possession in the light most favorable to Petitioner, and not simply discount it as being irrelevant. The factual indicia of
possession, which the Court of Appeals ignores, includes: (1) Respondents' admission that the pictures of the damaged 55: OCGA § 44-5-165. Petitioner has the right to prevent others from damaging property that affects the value of his home and his right to enjoyment of his home. 67 Here, it is undisputed that the condition of the right-of-way affects the value of Petitioner's home. 68 Indeed, the homeowners' association's threat to impose monetary penalties on Petitioner's home 69 detrimentally affects Petitioner's enjoyment of his home. By showing that the damaged right-of-way detrimentally affects the value of his home and his enjoyment of his home, 70 See also Housing Authority of Atlanta v. Famble, 170 Ga. App. 509, 522 (317 SE2d 853) (1984) (no control of non-owned premises by adjoining landowner where no contractual arrangement with owner to maintain or repair, even though landowner actually maintained premises.) Guagliardo v. Jones, 238 Ga.App. 668, 518 S.E.2d 925 (Ga.App. 06/04/1999)  Georgia Court of Appeals  A99A0403.  238 Ga.App. 668, 518 S.E.2d 925, 1999.GA.42883 <http://www.versuslaw.com>  June 04, 1999  GUAGLIARDO ET AL. V. JONES.
While courts delineate what facts are sufficient to constitute adverse possession, whether such facts exist is generally a jury question. 3 Am Jur 2d, Adverse Possession § 321. See KDS Properties, Inc. v. Sims, 234 Ga. App. 395, 397 (2) (506 SE2d 903). A trial court is not justified in directing a verdict as to an adverse possession defense when there is some evidence, or fact which could possibly support a jury's findings as to the elements of prescription under OCGA § 44-5-161. See Georgia Power Company v. Irvin, 267 Ga. 760, 761 (1), 762 (482 SE2d 362). Compare Hearn v. Leverette, 213 Ga. 286 (99 SE2d 147). OCGA § 44-5-161 provides,  "(a) In order for possession to be the foundation of prescriptive title, it:"  (1) "Must be in the right of the possessor and not of another;"  (2) "Must not have originated in fraud except as provided in Code Section 445-162;"  (3) "Must be public, continuous, exclusive, uninterrupted, and peaceable; and"  (4) "Must be accompanied by a claim of right."
 (b) "Permissive possession cannot be the foundation of a prescription until an adverse claim and actual notice to the other party."  Jones' motion for directed verdict was granted in the case sub judice because the trial court concluded, as a matter of law, that Jones' "hog wire fence" satisfied this Code section's notority and exclusivity requirements. This judgment was in error.  While OCGA § 44-5-165 provides that possession may be evidenced by structures such as Jones' "hog wire fence," this Code section does not diminish the rule that juries generally determine whether facts exist which constitute adverse possession - including issues concerning uninterrupted, exclusive and notorious possession. See Georgia Power Company v. Irvin, 267 Ga. 760, 766 (2), supra. See also McCrea v. Georgia Power Company, 179 Ga. 1, 14 (5) (174 SE 798). And compare Friendship Baptist Church, Inc. v. West, 265 Ga. 745 (462 SE2d 618). In the case sub judice, Jones alleged in his counterclaim that he erected a fence across the disputed property prior to 1964, but he testified at trial that he constructed the fence sometime during 1966. Jones also admitted at trial that the fence was in pretty bad shape; that there was at least one break in the fence, and that the Guagliardos' predecessor in title did not know about (he did not tell them) or agree to his construction of the fence. The Guagliardos, on the other hand, proffered testimony indicating that Jones' fence cut through a rarely traversed swamp, and they tendered into evidence an aerial photograph of the disputed area, taken in 1966, indicating that Jones' "hog wire" fence did not then exist.  This evidence, and proof that the federal government acquired a deed to the disputed property via foreclosure in 1984 - thereby interrupting Jones allegedly continuous 20-year possession of the land from 1966 (see Clark v. McBride, 256 Ga. 308, 310 (2) (348 SE2d 634); Redfield v. Parks, 132 U. S. 239 (10 SC 83, 33 LE 327)), would have authorized a jury's finding that Jones did not have uninterrupted, exclusive and notorious possession of the disputed property for 20 years as required by OCGA §§ 44-5-161 and 44-5-163. The trial court therefore erred in granting Jones' motion for directed verdict as to these issues. A directed verdict is only proper where there is no conflict in the evidence as to any material issue and the evidence, with all reasonable deductions therefrom, shall demand a particular verdict. OCGA § 911-50 (a). See Hanover Credit Corporation v. Datamatx, Inc., 226 Ga. App. 12, 13 (485 SE2d 571).
 "Both the Georgia and United States Constitutions prohibit the state from depriving `any person of life, liberty, or property, without due process of law.' United States Const., amend. XIV, sec. 1; see also Ga. Const., [Art. I, Sec. I, Par. I]. The fundamental idea of due process is notice and an opportunity to be heard." *fn14 As stated in Citizens & Coontractors’ Bank v. Maddox, *fn14 "[t]he benefit of notice and a
hearing before judgment is not a matter of grace, but is one of right." "A party's cause of action is a property interest that cannot be denied without due process. (Cit.)" *fn14 So it is that meaningful access to the courts must be scrupulously guarded, as it is a constitutional right universally respected where the rule of law governs. "Those regulations and restrictions which bar adequate, effective and meaningful access to the courts are unconstitutional. (Cits.)" *fn10 *fn10 OCGA § 9-15-14 . Under the United States Constitution, access is regarded as a corollary of due process of law. *fn9 No less may be said of the first paragraph of the Georgia Constitution. *fn9 OCGA §§ 51-7-80 through 51-7-85. *fn4 See OCGA § 5-6-41 supra.?????????????????????????????? (f); Leatherwood v. State,
 1. As stated in paragraph 12 of the Georgia Bill of Rights, a person has a right to represent himself or herself in court. "This provision was `primarily intended to guarantee the right of self-representation in the courts of this State . . .' [Cit.]" *fn4 Its purpose is to provide a right of choice between self-representation and representation by counsel. *fn4 Secondly, the very first provision of the Bill of Rights in "`[t]he constitution of this state guarantees to all persons due process of law and unfettered access to the courts of this state. (Cit.) These fundamental constitutional rights require that every party to a lawsuit . . . be afforded the opportunity to be heard and to present his claim or defense, i.e., to have his day in court. (Cits.)'" *fn4 But like all rights, responsibilities are attached and limits are imposed. No person is free to abuse the courts by inundating them with frivolous suits which burden the administration of the courts for no useful purpose. *fn4 notesaptconsland 11thcirbriefs