GA Code § 23-3-40 (2021)
2021 Georgia Code|Title 23 - Equity|Chapter 3 - Equitable Remedies and Proceedings Generally|Article 3 - Quia Timet|Part 1 - Conventional Quia Timet|§ 23-3-40. Purpose of Quia Timet

 The proceeding quia timet is sustained in equity for the purpose of causing to be delivered and canceled any instrument which has answered the object of its creation or any forged or other iniquitous deed or other writing which, though not enforced at the time, either casts a cloud over the complainant's title or otherwise subjects him to future liability or present annoyance, and the cancellation of which is necessary to his perfect protection.   (Orig. Code 1863, § 3153; Code 1868, § 3165; Code 1873, § 3232; Code 1882, § 3232; Civil Code 1895, § 4892; Civil Code 1910, § 5465; Code 1933, § 37-1407.)   Law reviews.   - For article discussing the problems associated with acquiring good title, see 15 Ga. B.J. 281 (1953). For article, "Tracing Georgia's English Common Law Equity Jurisprudential Roots: Quia Timet," see 14 The Journal of Southern Legal History 135 (2006). For annual survey on local government law, see 68 Mercer L. Rev. 199 (2016). For annual survey on real property, see 71 Mercer L. Rev. 241 (2019).   JUDICIAL DECISIONS    Plaintiff in an action to quiet title must assert that the plaintiff holds some current record title or current prescriptive title, and not only an expectancy, in order to maintain the plaintiff's suit. Gilmore v. Hunt, 137 Ga. 272, 73 S.E. 364 (1910); In re Rivermist Homeowners Ass'n, 244 Ga. 515, 260 S.E.2d 897 (1979).    Petition must contain a request for cancellation of an instrument, otherwise it is defective and, thus, subject to motion to dismiss. Tucker v. Ezell, 148 Ga. 47, 95 S.E. 672 (1918).    Petition should contain not mere conclusions but statements of fact showing that claimant is the true owner. Weyman v. City of Atlanta, 122 Ga. 539, 50 S.E. 492 (1905).   No right to jury trial.    - Special master did not err by denying a property owner a right to a jury trial in a buyer's quiet title action as the action was brought under the conventional quia timet statute and the owner had no right to a jury trial. Davis v. Harpagon Co., LLC, 281 Ga. 250, 637 S.E.2d 1 (2006).    Delinquent taxpayer had no right to a jury trial in a transferee's action to remove any clouds as to the title on the delinquent taxpayer's property, pursuant to O.C.G.A. § 23-3-40, to which the transferee obtained title to by the order of a special master. Human v. Harpagon Co., LLC, 281 Ga. 372, 637 S.E.2d 684 (2006).    When one seeks conventional quia timet, one is not entitled to trial by jury under O.C.G.A. § 23-3-43; when one seeks quia timet against all the world, however, one is entitled by the provisions of O.C.G.A. § 23-3-66 to a jury trial, but there is no right to a jury trial when a suit at law is converted by amendment into an equitable proceeding. Vatacs Group, Inc. v. U.S. Bank, N.A., 292 Ga. 483, 738 S.E.2d 83 (2013).    Trial court properly appointed a special master in a quiet title action and a corporation, who was unsuccessful in the corporation's claim for the property, was properly held not entitled to a jury trial because the suing bank had amended the bank's petition to provide for an action only for conventional quia timet by the time the petition was heard by the special master; therefore, no jury trial was available under O.C.G.A. § 23-3-43. Vatacs Group, Inc. v. U.S. Bank, N.A., 292 Ga. 483, 738 S.E.2d 83 (2013).   Quiet title action from tax sale.    - Because a tax sale listed the wrong owner of the property to be sold and the description of the property was inconsistent, such that it was unclear which property was being sold, the bidder's deed was defective, as was the quitclaim deed of the purchaser of the property from the bidder, and accordingly, there was no merit to the purchaser's claim that it was due summary judgment on the issue of whether the owner's executrix had a right to redeem the property or whether it was barred under O.C.G.A. § 48-4-45; after the tax sale, the bidder quitclaimed the deed to the purchaser, which occurred prior to the sheriff's "administrative cancellation" of the tax sale due to procedural errors, and the purchaser's action to quiet title, pursuant to O.C.G.A. § 23-3-40 et seq., resulted in summary judgment to the executrix. Harpagon Co. v. Gelfond, 279 Ga. 59, 608 S.E.2d 597 (2005).    In a quiet title action, the owner of property at the time the property was sold at a tax sale had standing to petition for title because the owner filed the petition and the trial court ruled on the petition during the time when the owner's right to redeem existed, as the title as owner was not divested and the tax sale purchaser had no right to possess property at that time. Republic Title Company, LLC v. Freeport Title and Guaranty, Inc., 351 Ga. App. 408, 829 S.E.2d 172 (2019), cert. denied, No. S19C1616, 2020 Ga. LEXIS 168 (Ga. 2020).   Action not one to quiet title.    - Action to set aside a deed that conveyed a property interest did not fit within O.C.G.A. § 23-3-40, since the plaintiff was not seeking to cancel an instrument that placed a cloud on the plaintiff's title or subjected the plaintiff to future liability. Wilson v. United States, 781 F. Supp. 779 (M.D. Ga. 1992).    Principle upon which equity will lend its aid to remove a cloud upon title is that one in the rightful possession of property is entitled to the full, quiet, and peaceful enjoyment of the same, without present annoyance and harassment, or threatened molestation. Duffee v. Jones, 208 Ga. 639, 68 S.E.2d 699 (1952).   Cancellation of deed rejected.    - Allegations in petition, seeking a cancellation of a deed as a cloud upon the plaintiffs' title to an undivided two-sevenths' interest in the land, were not sufficient to constitute a cause of action as a proceeding quia timet since the petition did not allege that the deed purported to convey a complete title to a full interest in the tract. Clark v. Woody, 197 Ga. 683, 30 S.E.2d 181 (1944).   Possession not required.    - Although it is the general rule that, in order for a plaintiff to maintain an equitable petition to remove a cloud upon his title, he must allege and prove possession in himself, where there is any other distinct head of equity jurisdiction sufficient to support the action, possession of the plaintiff is not required. Sweat v. Arline, 186 Ga. 460, 197 S.E. 893 (1938); Moore v. Moore, 188 Ga. 303, 4 S.E.2d 18 (1939).   Ownership interest jeoparidized.    - Where plaintiff seeks specific performance of an oral contract for the devise of property of which he is in possession but which is owned by his aunt, and alleges that distress warrants for rent have been taken against him by her, it is shown that his interest in the property is put in jeopardy by the deed. Harp v. Bacon, 222 Ga. 478, 150 S.E.2d 655 (1966).    A court of equity has jurisdiction to cancel an execution illegally issued, and this is especially true where there is nothing in the record showing or tending to show that the execution sought to be canceled had been levied on any of the plaintiff's property when the litigation was instituted. Lenett v. Lutz, 215 Ga. 369, 110 S.E.2d 628 (1959).   Recovery of rents and profits.    - In a suit to recover and cancel the deeds of the defendant as clouds on the plaintiff's title, the plaintiff, if entitled to recover the land, may also recover the rents and profits while possession of the land was wrongfully withheld by the defendant. Marshall v. Pierce, 136 Ga. 543, 71 S.E. 893 (1911).   Summary judgment proper once security deed paid in full.    - In an action to remove a cloud from title, the trial court properly granted summary judgment to a bank and cancelled a recorded deed in favor of a holder, as: (1) the holder could no longer claim any legal title to the subject property once the underlying debt thereto was paid; (2) no evidence of valid renewal or extension of the note existed; and (3) the holder lacked standing to challenge any foreclosure on the debt. Northwest Carpets, Inc. v. First Nat'l Bank, 280 Ga. 535, 630 S.E.2d 407 (2006).   Employed against deed or writing.    - Special master erred in concluding that the property purchaser's action to quiet title was a conventional quia timet employed to quiet title, as that action was used to quiet title as to a deed or other writing which casts a cloud over a title, whereas the property purchaser's action was a quia timet action against all the world; however, no error occurred in denying the property claimant's motion for a jury trial even though an action against the entire world allowed for one, as the evidence did not present a question of fact that required a jury. Gurley v. E. Atlanta Land Co., 276 Ga. 749, 583 S.E.2d 866 (2003).   Prerequisites not met.   - Plaintiff's claim failed because plaintiff had not alleged that plaintiff paid off the mortgage loan in full to satisfy the Security Deed or that plaintiff's signature on the Security Deed was false. Bowman v. U.S. Bank Nat'l Ass'n, F. Supp. 2d (N.D. Ga. Aug. 1, 2013).   Decedent's estate administrator's claim for conventional quiet title failed because the decedent did not hold some current record title or current prescriptive title upon execution of a security deed when the amount thereunder had not been fully paid. Shannon v. Albertelli Firm, P.C., F.3d (11th Cir. May 7, 2015)(Unpublished).   State immune from suit.    - Sovereign immunity barred a conventional quiet title action against the state, which was immune from suit. TDGA, LLC v. CBIRA, LLC, 298 Ga. 510, 783 S.E.2d 107 (2016).    Cited in Thompson v. Etowah Iron Co., 91 Ga. 538, 17 S.E. 663 (1893); Felder v. Paulk, 165 Ga. 135, 139 S.E. 873 (1927); Simpson v. Ray, 180 Ga. 395, 178 S.E. 726 (1935); Allen v. Bemis, 193 Ga. 556, 19 S.E.2d 516 (1942); Stow v. Hargrove, 203 Ga. 735, 48 S.E.2d 454 (1948); McDaniel v. Bagby, 204 Ga. 750, 51 S.E.2d 805 (1949); Todd v. Conner, 220 Ga. 173, 137 S.E.2d 614 (1964); Giddings v. Starks, 242 Ga. 457, 249 S.E.2d 203 (1978); Walker v. Walker, 266 Ga. 414, 467 S.E.2d 583 (1996); Davis v. Harpagon Co., LLC, 283 Ga. 539, 661 S.E.2d 545 (2008); Brock v. Yale Mortg. Corp., 287 Ga. 849, 700 S.E.2d 583 (2010); Richards v. Wells Fargo Bank, N.A., 325 Ga. App. 722, 754 S.E.2d 770 (2014).   RESEARCH REFERENCES   Am. Jur. 2d.   - 65 Am. Jur. 2d, Quieting Title and Determination of Adverse Claims, §§ 2, 16, 63.   C.J.S.   - 30 C.J.S., Equity, § 40.   ALR.    - Doctrine of after-acquired title as between one who took before and one who took after common grantor or mortgagor acquired title, 25 A.L.R. 83.    Right of vendor in contract for sale or exchange of real property to bring suit for forfeiture, foreclosure, or rescission, or to quiet title or recover possession, without first giving notice, or making demand for possession, 94 A.L.R. 1239.    Joinder of claims to separate parcels in suit to quiet or to remove cloud on title, or to determine adverse claims to land, 118 A.L.R. 1400.   Common source of title doctrine, 5 A.L.R.3d 375.