GA Code § 44-6-122 (2021)
2021 Georgia Code|Title 44 - Property|Chapter 6 - Estates|Article 7 - Tenancy in Common|Part 1 - In General|§ 44-6-122. Accounting Between Cotenants for Unequal Share of Rents or Profits; Priority of Claim Over Certain Liens

 If one tenant in common receives more than his share of the rents and profits, he shall be liable therefor as the agent or bailee of the other cotenant. The claim for such indebtedness shall be superior to liens held by third persons which have been placed on the interest of the cotenant by the tenant in possession who received the unequal share of the rents and profits.   (Civil Code 1895, § 3147; Civil Code 1910, § 3727; Code 1933, § 85-1004.)   Law reviews.   - For article discussing several aspects of joint tenancy with right of survivorship, see 16 Ga. St. B.J. 54 (1979).   JUDICIAL DECISIONS   Claim against cotenant takes precedence over mortgage executed by mortgagee and over materialman's lien.    - Claim against a cotenant for rents and profits arising from the exclusive use of the estate will take precedence of a mortgage executed by the mortgagee. Foreclosure of a mortgage creates a lien. Foreclosure of a materialman's lien does nothing more. Thus, the claim of the cotenant takes precedence over the materialman's lien foreclosure. New Winder Lumber Co. v. Guest, 182 Ga. 859, 187 S.E. 63 (1936).   Title of grantee without notice of claim superior to claim by cotenant.    - Claim of one against a cotenant on account of the cotenant having received more than the cotenant's share of the rents and profits does not take precedence over the title of a grantee of such cotenant who took without notice of such claim. Sawyer v. Powell, 230 Ga. 309, 196 S.E.2d 882 (1973).   Claim by cotenant not superior to security deed.    - Statute does not make the claim for indebtedness superior to a security deed made by the tenant in common individually, purporting to convey that tenant's undivided interest in the realty to a third person as security for that tenant's personal obligation. Carmichael v. Citizens & S. Bank, 162 Ga. 735, 134 S.E. 771 (1926) (see O.C.G.A. § 44-6-122).    Lien recognized by this statute is superior to a materialman's lien, and to a mortgage; but it is inferior to a security deed. Bank of Tupelo v. Collier, 191 Ga. 852, 14 S.E.2d 59 (1941) (see O.C.G.A. § 44-6-122).   Section protects tenant who pays taxes for joint property.    - Provisions of this statute are applicable in favor of a tenant in common who has expended money for the protection of the joint property by the payment of taxes. Collier v. Bank of Tupelo, 190 Ga. 598, 10 S.E.2d 62 (1940); Bank of Tupelo v. Collier, 191 Ga. 852, 14 S.E.2d 59 (1941) (see O.C.G.A. § 44-6-122).   How "tenant in possession" may place lien.    - A "tenant in possession," as those words are used in this statute, may place a lien by any deliberate act which renders the joint property subject to seizure, such as a purchase of materials for improvements without the knowledge and consent of a cotenant. If one held out that one owned the entire interest in the property to be improved, the tenant in possession was the cause which placed the lien on the property. New Winder Lumber Co. v. Guest, 182 Ga. 859, 187 S.E. 63 (1936) (see O.C.G.A. § 44-6-122).   Jurisdiction in equity.    - When a tenant in common is receiving more than the tenant's share of the rents and profits, equity will take jurisdiction of the matter and adjust the accounts between the tenants. Tate v. Goff, 89 Ga. 184, 15 S.E. 30 (1892); Daniel v. Daniel, 102 Ga. 181, 28 S.E. 167 (1897); Thompson v. Sanders, 113 Ga. 1024, 39 S.E. 419 (1901).    Claims may be set up in equity. Mills v. Williams, 208 Ga. 425, 67 S.E.2d 212 (1951).    Having properly assumed jurisdiction for the partition of property of cotenants by its sale and distribution of the proceeds, a court of equity has jurisdiction to adjust the accounts or claims of the cotenants. Taylor v. Sharpe, 221 Ga. 282, 144 S.E.2d 390 (1965), overruled on other grounds O'Connor v. Bielski, 288 Ga. 81, 701 S.E.2d 856 (2010).   Suit against executor of deceased cotenant.    - Cotenants may maintain a suit to recover their share of the common property from the executor of a deceased cotenant, who asserts an adverse claim to the whole. Coppedge v. Coppedge, 144 Ga. 466, 87 S.E. 392 (1915).   Statute of limitations.    - If one tenant in common receives more than one's share of the profits, the statute of limitations does not commence to run in one's favor so as to bar an action of account by one's cotenant until such tenant begins to hold such surplus adversely to the cotenant, and knowledge of that fact comes to the cotenant. Ballenger v. Houston, 207 Ga. 438, 62 S.E.2d 189 (1950); Chambers v. Schall, 209 Ga. 18, 70 S.E.2d 463 (1952).    Between cotenants, no bar is shown by mere lapse of time. Chambers v. Schall, 209 Ga. 18, 70 S.E.2d 463 (1952).   Limitation on damages recoverable.    - In an action brought under former Code 1933, §§ 85-1003 and 85-1004 (see O.C.G.A. §§ 44-6-121 and44-6-122) by tenants in common to recover the tenants' share of the rents and profits from the defendants who were in possession of the land owned in common, a recovery therefor can be had only up to the time the suit was commenced, and a former action between the same parties for the rents and profits on the same property, which was still pending, did not abate so much of the present suit as seeks recovery of the plaintiffs' share of the rents and profits accruing since the filing of the former action. Lankford v. Dockery, 85 Ga. App. 86, 67 S.E.2d 800 (1951).    An action by a tenant in common for one's share of rents may recover damages only up to the time of bringing the suit, the reason being that the failure to share rents may or may not be continued after the suit is commenced and, if continued, a new cause of action arises therefor. Lankford v. Dockery, 85 Ga. App. 86, 67 S.E.2d 800 (1951).   No liability if tenant receives permissible share.    - Every tenant in common has the right to possess the joint property; if one does not receive more than one's share of the rents and profits thereof, one is not liable to a cotenant. Pugh v. Moore, 207 Ga. 453, 62 S.E.2d 153 (1950).   Admissibility of tax receipts.    - In an action for accounting and other relief between joint owners of property, tax receipts tending to show that one of the owners had paid the tax on the joint property for certain years are admissible. Head v. Lee, 203 Ga. 191, 45 S.E.2d 666 (1947).   Subsequent recording of lien not authorized.    - Statute does not authorize the subsequent recording of a lien upon the title register for rents accruing prior to the registration of title. Lankford v. Milhollin, 204 Ga. 193, 48 S.E.2d 729 (1948) (see O.C.G.A. § 44-6-122).   Claim for excess loan and tax payments made.    - In an estate's claim for partition of property, a co-tenant's counterclaim for contribution and set-off for sums the co-tenant had paid in loan and tax payments was not barred by the four-year statute of limitations, O.C.G.A. § 9-3-25, because under O.C.G.A. §§ 44-6-122 and44-6-141, the statute did not begin to run until the estate filed its complaint. Khimani v. Ruppenthal, 344 Ga. App. 658, 811 S.E.2d 448 (2018), cert. denied, No. S18C0916, 2018 Ga. LEXIS 571 (Ga. 2018).    Cited in McArthur v. Jordan, 139 Ga. 304, 77 S.E. 150 (1913); Bank of Eton v. Owens, 146 Ga. 464, 91 S.E. 476 (1917); Wallis v. Watson, 184 Ga. 38, 190 S.E. 360 (1937); Zeagler v. Zeagler, 190 Ga. 220, 9 S.E.2d 263 (1940); Veal v. Veal, 192 Ga. 503, 15 S.E.2d 725 (1941); Lankford v. Dockery, 87 Ga. App. 813, 75 S.E.2d 340 (1953); Brown v. Granite Holding Corp., 221 Ga. 560, 146 S.E.2d 289 (1965); Evans v. Little, 246 Ga. 219, 271 S.E.2d 138 (1980); Brewer v. Brewer, 156 Ga. App. 268, 274 S.E.2d 671 (1980); Jones v. Alexander, 163 Ga. App. 278, 293 S.E.2d 537 (1982); Therrell v. Georgia Marble Holdings Corp., 960 F.2d 1555 (11th Cir. 1992).   RESEARCH REFERENCES   Am. Jur. 2d.   - 20 Am. Jur. 2d, Cotenancy and Joint Ownership, §§ 40 et seq., 49 et seq., 76 et seq.   C.J.S.   - 86 C.J.S., Tenancy in Common, §§ 22, 55 et seq., 83 et seq.   ALR.    - Rights and remedies of tenant in common who pays his cotenant's share of taxes or assessments, 48 A.L.R. 586.    Contribution or allowance as between cotenants in remainder as affected by fact that one or more of them owns, or did own, life estate or an interest therein, 98 A.L.R. 859.   Basis of computation of cotenant's accountability for minerals and timber removed from the property, 5 A.L.R.2d 1368.